In Part 1 of this series of posts, I outlined parts 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 will be 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 (That’s the type of appeal that has been filed in Keith Raniere’s case). I also listed some of the other things that a convicted defendant can do to challenge their conviction and/or sentence.
In Part 3, I started my detailed analysis of the appellate brief that was filed by Jennifer Bonjean on behalf of Keith on May 7, 2021.
For those Frank Report readers who want to able to refer back to the appellate brief, you can find a link to it HERE.
In the appellate brief, Bonjean identified five legal issues that form the basis of Keith’s appeal. Those five legal issues are 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 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.
Part 3 of this series focused on the first legal issue – specifically as it relates to the following charged offenses and predicate acts:
- Count 5: Sex Trafficking Conspiracy
- Count 6: Sex Trafficking of Nicole
- Count 7: Attempted Sex Trafficking of Jay
- Predicate Act 10-A: Sex Trafficking – Nicole
As I noted at the conclusion of Part 3, I think that Bonjean may have made a strategic error in starting out with the argument that the prosecution had not provided enough evidence to establish Keith’s guilt “beyond a reasonable doubt” regarding certain charges and alleged predicate acts.
That’s because that sort of argument essentially concedes that the prosecution did introduce some evidence regarding each of those charges and alleged acts – and, more importantly, because it will almost certainly force all three appellate judges to review every piece of evidence that was introduced during the course of Keith’s trial.
In addition to ensuring that it will take the 3-judge panel a long time to sift through all that evidence, her strategy means that the judges will be exposed to every gruesome detail about Keith that came out during the trial. To me, that’s just not a great idea – especially because I think she had much stronger arguments to make in seeking to have Keith’s convictions overturned.
In any event, let’s finish up what Bonjean had to say about the other charges and predicate acts for which she claims the prosecution failed to introduce enough evidence to support a guilty verdict “beyond a reasonable doubt”. Those are as follows:
- Count Three: Forced Labor Conspiracy
- 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-B: Forced Labor – Nicole
- Predicate Act 11: Conspiracy to Commit Identity Theft: Pamela Cafritz
RE: Count 3: Forced Labor Conspiracy and Predicate Act 10-B: Forced Labor: Nicole
Bonjean begins this part of her argument by stating that “No rational juror could conclude based on the evidence adduced at trial that Defendant knowingly obtained, or agreed to obtain, any labor or services from Nicole or any other DOS slave”.
I know that every attorney has their own style when they make arguments – but it just seems foolish to me to use the phrase “or any other slave” in this sentence.
Even though appeals are all about legal issues – and not about re-trying the case – I think that tacitly admitting that Keith had slaves creates a horrible context for the legal arguments that Bonjean is trying to raise to get Keith’s convictions thrown out.
Especially when there was no need whatsoever to include that phrase.
Bonjean goes on to argue that the forced labor statute – i.e., 18 U.S.C. §1589 – “…was not intended…to cover the ‘acts of care’ that were expected from members of DOS and the NXIVM community as a whole”.
While I think that argument actually has some merit, I also think that Bonjean severely undercuts it by adding that “Even if the ‘acts of care” could be construed as ‘labor or services’ (under 18 U.S.C. §1589), the record shows that Nicole knowingly consented to these types of activities as part of her membership in DOS”.
Here, Bonjean seems to miss the point that every member of DOS who provided any collateral – which Nicole certainly did – automatically lost the ability to act freely unless they didn’t care if their collateral was released.
Although Bonjean is correct in asserting that the trial record is devoid of evidence that Nicole feared that her collateral would be released if she refused to provide “acts of care”, she entirely misses the point – as Nicole testified – that she did fear her collateral would be released if she did not do what she was instructed to do by her master.
Trust me, it won’t be hard for the three appellate judges to conclude that if Nicole were generally fearful that her collateral would be released if she didn’t do everything she was asked or ordered to do, she was incapable of saying “No” to any request or demand – including ones that concerned so-called “acts of care”.
Once again, I think that Bonjean mangled what might have been a very strong point in her appellate brief.
RE: Predicate Act 2 & Predicate Act 3: Sexual Exploitation of Camila
Rather than argue that the photographs of Camila’s genitalia were altered – an argument that has been raised ad nauseum by Suneel and other DOS dead-enders – Bonjean argues that because Camila did not testify during the trial, the prosecution did not prove that Keith “intentionally induced or coerced Camila to take part in sexually explicit conduct” – an argument that totally ignores the fact that Camila was only 15-years old when the photos were taken and, as such, was legally incapable of consenting to having them taken.
Bonjean then goes on to some bizarre argument about Keith’s state-of-mind when the photographs were taken on November 2, 2005 and November 24, 2005 – an argument that will likely not convince any of three appellate judges to toss out the jury’s conclusion that Keith likely committed these predicate acts “beyond a reasonable doubt” (Question to the NDNY prosecutors: WHY HAVE YOU NOT FILED THE POSSESSION OF CHILD PORNOGRAPHY CHARGES THAT THE EDNY PROSECUTORS HANDED TO YOU?).
RE: Predicate Act 6: Conspiracy to Alter Records for Use in an Official Proceeding
For me, this is the most perplexing part of the appellate brief.
That’s because director and videographer Mark Vicente, the guy who did all the alterations, testified in detail about the elaborate process he went through – at the direction of Keith – to alter the videotape that was turned over to Rick Ross’ attorneys during the course of his 14-year lawsuit with NXIVM/ESP.
In the grand context of Keith’s conviction of seven (7) criminal counts – and sixteen (16) predicate acts – this is a pimple on a camel’s ass.
So, why waste even a page of the appellate brief arguing whether the testimony provided by Vicente was sufficient to prove Keith’s guilt on this predicate act “beyond a reasonable doubt”?
Bonjean even asserts that “The record is devoid of evidence showing that Vicente or any other co-conspirator altered the videos with the intent to interfere with any official proceeding, including the one charged in the indictment” – which clearly suggests to me that she simply didn’t read all the trial transcripts regarding Vicente’s testimony.
In my opinion, this was an utter waste of space in the appellate brief – which will be duly noted, consciously or subconsciously, by the three appellate judges.
And, once again, it happens in the first half of the document – which is when Bonjean should be making her strongest legal arguments, not her weakest ones.
RE: Predicate Act 11: Conspiracy to Commit Identity Theft: Pamela Cafritz
Even before I read this section of Bonjean’s appellate brief, I thought it was odd that she had included this as one of the legal issues she thought warranted a new trial for Keith.
In part, I think my reaction was based on the fact that in the overall context of Keith’s trial, this seems like a relatively minor issue (If this were the only crime he was convicted of committing, he’d likely have already served his entire sentence – and then some).
I also think part of my reaction was based on the fact that Clare Bronfman has already admitted to what happened with the use of Pam Cafritz’s American Express card as part of her plea deal.
In any event, Bonjean began this part of the appellate brief by asserting that “In order to prove act 11, the government was required to demonstrate that Defendant, and his coconspirators, intended to engage in conduct that constituted tax evasion”.
She then went on to list a variety of reasons why the government had failed to meet its burden of proof with respect to this predicate act.
Unfortunately for Bonjean, I don’t think her premise is correct: i.e., the prosecution did not need to prove that Keith’s motivation for using Pam’s credit card was to evade taxes.
Under the federal Identity Theft and Assumption Deterrence Act –18 U.S.C. § 1028(a)(7) – a person commits a federal crime when (s)he “knowingly transfers or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law”.
I may be missing something here but it seems to me that Bonjean did a good job of defending Keith with regard to a crime that he was not charged with committing (i.e., tax evasion) while she simultaneously did nothing to defend him with regard to a crime that he was convicted of committing (i.e., identity theft).
In any event, I do not think this issue should have been included in the appeal. And I also think that the way it was presented in the appellate brief will only raise questions about Keith’s attitude about taxes that did not have to be raised at all.
So, that’s it for the first of the five legal issues that Bonjean has raised on behalf of her client, Keith Alan Raniere AKA Vanguard.
In the next post, we’ll take a look at the second of those issues – which is whether the prosecution introduced enough evidence at the trial to support the jury’s finding that Keith was guilty of Racketeering and Racketeering Conspiracy.
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.