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.
[…] Part 4, I finished my analysis of the first of those legal […]
Good points as ever. Even the first – why call them slaves? No need to. Plenty of women and men choose BDSM-type relationships and might use that word without meaning it in the usual sense. On the more general objection – again I agree. Making the appeal judges read the evidence is the last thing KR wants. Every objection from his followers has been looking at this tiny 0.001% issue with access to a photo and when people home in on that tiny issue they might feel there is a bit of a point BUT and it is a huge but it is the overall picture we must not forget – the many other things done wrong and the context.
I’m rereading this. Interestingly, not a single GOOD thing about Vanguard or the entire GROUP was mentioned in the Statement of Facts. Nancy founded the principles, and suddenly Raniere is in there as its lead:: not a SINGLE credential was mentioned. World Smartest Man wasn’t mentioned either, or name Vanguard, Bowing etc, if that was in the record. WHY was defendant even involved???
Then the brief jumps to DOS as a ” Master Slave Paradigm”.
So, as a judge reading this, I would read between the lines.
No credentials to lead this group….open polymorous relationship…..recruitment of actressess despite no serious acting credentials…..kPOW….Master Slave group!!!! Its NOT EVEN PRESENTED AS A WOMANS EMPOWERMENT GROUP. It’s presented as a Master Slave group.
I don’t blame any of Vanguard lawyers for this. It is what it is. The facts in the record are what they are.
But it’s interesting that we still don’t know why Keith was even in charge of this group.
Two more points: the fact he had an open poly relationship with PC is brought up EARLY in the brief. Like yes, he slept around but he had an open relationship, which explains the women.
However, if he believes in Poly, then CLEARLY the explicit texts with Camilla ARE relevant– it impeaches the veracity of the poly relationships.
That is, HE could sleep around, the women couldn’t.
Second: the 164 or however many photos of vulvas clearly goes to pattern of SOMETHING. They are relevant in my opinion and not prejudicial at all.
He was racking these pictures up like they were baseball cards.
The author’s analysis seems right. I think this appeal is a complete lost cause, so I don’t want to come down too hard on appellate counsel who has a huge mountain to climb. But no generalized “insufficient evidence” argument is going to work with a record this long and complicated. And anything about the lack of coercion – in a case where everyone had surrendered blackmail material to the accused – is doomed and, in my view, just kills the brief’s credibility.
Thanks for the input!
Since appeals are based on questions of law, and are not “do-overs” of the original trial, I don’t understand Bonjean’s “insufficient evidence” argument. Or her statement about how “no rational juror” would’ve found Raniere guilty. Isn’t this just second guessing the jury’s verdict?
Is there an appeals argument that the jury just came to the wrong decision? That the evidence was insufficient?
This appeal doesn’t even seem very serious to me. More like going through the motions. The brief doesn’t seem to have been spell-checked, which indicates to me that writing it up got much attention. Maybe that’s how the word “slave” slipped in.
Raniere’s case is hopeless. The evidence against him is voluminous, his crimes are despicable, and he’s his own worst enemy. To paraphrase Bonjean, no rational person could conclude he’s innocent.
Although she doesn’t do a very good job of it, Bonjean is trying to argue that the prosecution did not provide sufficient evidence to support a finding of guilty beyond a reasonable doubt for every element of every crime. Had she reviewed each element of each crime — and each predicate act — for which Keith was found guilty in an easy-to-understand chart that clearly showed where the alleged deficiencies occurred, this might have been a very potent argument. Instead, she just makes broad statements — and never identifies exactly what elements the prosecution failed to prove.
There’s a lot of moving parts to Rico. I expected a more in depth analysis on appeal.
I’m kind of going out on a limb here — but maybe — just maybe — that’s because I have not yet written about the RICO charges. But thanks for your insightful critique.
I wasn’t insulting your critique. I read the Appellate brief. I wasn’t impressed. It was shallow.
Your critiques are spot on.
I apologize then for my reaction to your comment. I thought you were criticizing what I haven’t written yet about the portion of the appeal that addresses Keith’s conviction on the RICO charges.
I totally concur with your assessment of the appellate brief as being shallow. In addition, I think it was horribly structured, focused too much on unimportant legal issues, left out some important legal issues, and totally missed the opportunity to put enough doubt in the minds of the three-judge panel to warrant an overturning of the trial outcome.
Re The Legal Arguments of Bonjean & Suneel:
Why did Bonjean not mention Suneel’s photoshopped Cami photos?
In addition, Bonjean in her brief, didn’t bring up the lifetime vow, in which the women gave up all their legal, civilian, and employment rights.
Such a big letdown, Suneel, must be more distraught than when he lost the Flamingo Dance Contest, or took a car ride with Eduardo. Then again, the car-ride did end with a happy ending.
Yep, Bonjean is in over her head on this case. She is approaching this likely the same way did her single witnesses’ successes – trying to make all the evidence and witness statement(s) seem insufficient.
Except here, wanting the judges to scrutinize all the evidence is a bad idea for this type of case. Most of the evidence is all custom built around the myth, legend, and lies of Keith Raniere, not less specific info like vague witness descriptions, blood evidence, scene descriptions, and the like that is on its own without context is neutral to a specific person.
Then there are unforced mistakes like using NXIVM terms (ex: DOS slaves) in the case. Those terms do not help in any way and should have been avoided at all costs. Attempting to keep the judge ignorant of the specifics of the cult is to her advantage and, once again, she is aiming them right at that information, demanding they understand the cult. Things like the cult has slavery and the cult has its own use and definition for the word “collateral.” The judges might have learned these things on their own but why create a bullseye on the information if just more careful phrasing could hammer the same point.
Suneel and NXIVM’s 5 dismissal and simultaneous obsession with Keith’s behavior with a minor remains a fascinating look at how hero worship can excuse any depraved behavior but I thought a lawyer would think twice about that aspect of the case. Seems here the tactic is pretty simple – focus on it being bad evidence that should be tossed. Anything else only screams try to avoid imagining why Keith had naked pictures of a minor he was in contact with and does little to really explain why that charge should be dismissed.
Another weakness of her case that shows she is in over her head is her focus on intent. Intent does matter in cases that involve charges of violence like her bread and butter of single witness cases and police brutality appeals she was successful at. For Keith’s charges, intent isn’t particularly relevant. Again she keeps showing she is using a method that worked on previous cases and applying it here but the problem is inherently she is somehow not recognizing she is applying her case about apples to a case about oranges.
For her other cases, probably attempting to attack all counts was strategically sound. In Keith’s case, it’s just a bad idea. Strategically, it probably would have been best if she didn’t bother with a few of them (pedo charge, the ID theft charge, etc.). Ignoring them isn’t an admission of anything other than she didn’t see it as a leverage point for the appeal. Judges wouldn’t have cared. But every time she highlights a charge, she guarantees greater scrutiny and the judges are not just going to toss the case on a small error if the picture as a whole is showing a case with an inevitable conclusion. She thinks she is showing a pattern but she isn’t.
It will be interesting to see if Claviger’s analysis continues to highlight this copy and paste style from past cases.
Really appreciate this detailed breakdown and your legal expertise, Clav.
Laughed at Bonjean’s (or Keith’s) choice use of “other DOS slaves” myself and can’t wait to hear how you would have, I’m sure, argued this point far better. But let’s don’t give ’em any bright ideas.
I, too, want answers on why NDNY has failed to prosecute at least the referred charges and hope there is some realization that not doing so may result in the same tragic consequences that their failure to investigate and prosecute NX all along has – for not only victims and potential ones but to the political careers, reputations, etc. of those who neglected their duties in the past.
Hmm. Interesting article.
Honestly sickens me to hear this lawyer referring to people as slaves. Or “any other slave” or whatever she calls it, as if this is something acceptable and normal.
It makes a mockery of human progress and equality. I hope those words ring heavy in the ears of the judges.
It’s time for Frank to stop protecting the Mass Murderer Tony Fauci.
Tucker: Fauci deserves to be under ‘criminal investigation’
Another great piece!
After reading this article on the appeal, I believe Marc Agnifilo should have put up more of a defense.
Do think Marc Agnifilo should have put up more of a defense?
Do you feel Marc Agnifilo is a very overrated attorney based on his defense of Raniere?
I’m just looking for yes or no answers.
I don’t want to waste your time.
With hindsight being 20/20, it’s easy to say that Agnifilo should have put on more of a defense. As I’ve already noted several times, how much worse could the outcome have been than 120-years in federal prison plus, of course, 5-years of post-release probation?
But I am not prepared to say that Agnifilo is over-rated as a defense attorney for several reasons.
First, all defense attorneys lose a lot more trials than they win. They’re a lot like baseball hitters: i.e, be successful 30% of the time — and you’re a Hall of Fame candidate (These days that may actually be 25%).
Second — and, in this case, more importantly — defense attorneys are only as good as the relevant facts in a case and their clients allow them to be. Unfortunately for Agnifilo, both the facts — and his client — were particularly crappy in this case.
My sense is that Raniere had an inordinate amount of input in structuring his defense — which, given his grandiose sense of his intelligence and skills, pretty much guaranteed a really bad outcome (It’s like Bill Cosby refusing to participate in any sex offender programs — and then being surprised that his request for parole was denied). And he was also too chicken-shit to take the stand — which was the only possible way he could have convinced at least one juror to hold out for his acquittal.
It’s possible that history is repeating itself with respect to Raniere’s appeal. Either that or Bonjean is the one I would say is over-rated.
I had an opinion regarding Marc — now I share your sentiments on the matter.
Thanks so much for taking the time to reply!
—Either that or Bonjean is the one I would say is over-rated.
I am kind of surprised Raniere hired Bonjean. I know you can’t judge a book by its cover, but Bonjean appears to be way out there… Like on the moon. She is like a television show attorney. Tattoos, parties with her under-age daughter, etc., etc.
Nice Guy, come on man! you know raniere better than that. She’s hot and the only fresh poontang keith gets to talk to anymore. And I’m pretty sure nicki has targeted her and her daughters for DOS.
The word “Poontang” is sexist and a product of a male dominated white privilege society.
It is also racist and a product of heterosexual misogyny and elitist construct.
Bonjean is the last woman Raniere will be physically close to for a long, long, long time.
It’s not just sex, imagine never holding a woman in your arms ever again. No more tender warmth, unless it’s from a dude on estrogen. 😉
Reading all of this, it’s not easy to mellow out, from a sense of indignant frustration about so much of what Bonjean propounds. Is she hoping to make suet? Is that all?
I wouldn’t mind dumping a big 7-11 slurpy drink onto someone’s thick head, but already know better than to do so.
“No rational jury…” blah blah blah.
Who is the batshit-sounding one here? Who is the idiot who signs off upon her payments? Insulting the jury is one screwy way to get things started.
Wake the hell up to the (costly) language of total bullshit. Good God, what a fumble, right out of the gate.
One could send that line straight out of town with no more than castanets! What exactly is this? Does Bonjean even hear herself? One wonders. Seriously.
What kind of bald-headed fucking ARROGANCE is this? Slurpy crap.
And then the bug muddy shitpile continues, on and on and on. Bonjean, is she trying to be the new pin-up girl for blind justice? Try a little harder, then. At the very least, attempt to have the verbiage somewhat coherent. Climb out of the hedges and start again.
What in the actual HELL is “forced care” supposed to even mean? Has anybody dissected that bag of hogwash at all?
No one on the planet can force anyone to “care.” The entire concept is so off-kilter that it is beyond ridiculous and moves down the line, away from any sort of analyzed bit of phraseology, into being pathetic.
Ay yi yi. Oy vey Ishmael. That name translates as “hear me, Lord.” Out here on a rooftop. Hear me?
This isn’t over. It is never over. Hear that.
every one of Shivani’s sentiments, my particular favorite being ‘slurpy crap’ 🤣
It’s slurpy time !!!!
Spanky 7*11 aka Bangkok-
How’s summer camp going?
I’m lov’n the Slurpy.
Bonjean claims she became a lawyer because she didn’t like the way female sexual assault victims were treated by the police…
…Now, Bonjean claims she protects the underdogs(rapists) from law enforcement.
She actually has all of this information on her website.
KR – I was wondering if there had ever been an instance of two different areas, such as the EDNY and the NDNY jointly prosecuting in one trial?
It’s actually possible for the EDNY attorneys to prosecute a case in the NDNY (or any other district for that matter) with/without the local prosecutors. Unfortunately, instead of doing that, the EDNY prosecutors chose to refer the three charges that could not be prosecuted in the EDNY to their counterparts in the NDNY — and those slugs, as we all know, never did anything with them.
US Attorney, NDNY
“Why have you not filed the possession of child pornography charges that the EDNY handed to you?”
I’m always wondering about this and have not found or received any justification, not from any source whatsoever, about the stagnation which is being maintained via what looks like silence, regarding these further potential charges against Raniere, as well as other of his “slavish co-conspirators.”
What can one conclude about this stagnation?
I am reminded of a comic out of the past who made a big name for himself, based upon what became his famous one-line career of sorts. He would be describing the utter messes and chaotic work habits, etc. in which he kept finding himself so utterly at a loss. And the comedian’s entire schtick was 4 words.
“It’s not my job.”
Sincerely, Bill Nye said “yob,” and did not say “job.” And yes, my typing is always questionable. But gah! Ga ga gah.
Then, after Bill Nye, the late Freddie Prinze took that line over for awhile on Chico and the Man. Footnotes about comics are significant enough to be maintained. Yes or no?
Footnotes about Raniere and his staff of “carers” end up receiving the buffalo stomp before getting trashed.
So, yob. Yob. Weeknd yob included.
“For those who think young.”
Pepsi, remember the slogan? It did not mention Pepto-Bismal. How dismal🍆
that image could be.
Please excuse the accidental eggplant. Really. It appeared here mysteriously, but what the heck. Many of us appear accidentally and were told so, too.
I can see why perhaps NDNY has not acted on these other charges in that the target is already serving 120 years. iF they perused these new serious charges, what’s the best outcome they could achieve? Another 20 years maybe? Is it really cost effective to develop a case, obtain an indictment, go to trial to just achieve adding punishment to what is already likely a virtual life sentence? Is that the best use of taxpayers dollars?
How’s about JUSTICE and, possibly, restitution for the victims of the child molestation, sex and forced labor trafficking, (s)extortion, racketeering, money laundering, immigration fraud, witness tampering, false arrest and imprisonment, possibly attempted murder and other schemes perpetrated by and on behalf of Sara Bronfman, Basit Igtet, Rosa Laura Junco, Alejandro Betancourt, the Boone brothers and many others among NXIVM’s international crime ring leadership out of Albany, NY and Mexico?
Or will those crimes continue to go unrecognized until there are no longer any witnesses to them?
…While honest, hard working Mexican immigrants are being separated from their families, deported over traffic tickets?
From what I can see, this appeal strategy seems to have come entirely from Raniere. His goal is to be exonerated of all charges so he can once again claim to be perfect. The smartest man in the world can settle for nothing less.