In Part 1 of this series of posts, I outlined some parts of the overall process for handling direct appeals in federal criminal trials – which is the type of appeal that was filed on behalf of Keith Raniere on May 7, 2021 by Jennifer Bonjean.
In Part 2, I outlined the remainder of that appeals process – and explained the concept of “preservation” as it relates to the types of issues that can be raised via a direct appeal. 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 summarized the five legal issues that form the basis of Keith’s appeal – and began a detailed analysis of the first of those issues. 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 the 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 the 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 the 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 the Defendant should be presumed guilty.
In Part 4, I finished my detailed analysis of the first of the five legal issues that are described in Bonjean’s appellant brief.
In this Part 5, I will be evaluating the portion of Bonjean’s appellant brief that focuses on the second legal issue: i.e., whether the government proved Keith guilty of Racketeering and Racketeering Conspiracy – which were the first two counts in the second superseding indictment in his case.
For those Frank Report readers who want to able to refer back to the appellant brief, you can find a link to it HERE.
Racketeering & Racketeering Conspiracy
The second legal issue that Bonjean has raised is centered around her assertion that the EDNY fashioned its case against Keith and his co-defendants as a RICO case because many of the predicate acts would have otherwise been time-barred by the applicable statutes-of-limitations.
She is certainly not the first appellate attorney to make that argument – and there have been numerous cases in which federal prosecutors have, in fact, used the RICO statute to include, as predicate acts, what would otherwise be unchargeable crimes.
Unfortunately for Bonjean – and even more unfortunately for Keith – the prosecutors’ motivations are not at issue here.
Whether they chose to charge Keith under the Racketeer Influenced and Corrupt Organization (RICO) Act in order to “resurrect” some charges that would otherwise be time-barred is totally irrelevant.
All that will matter to the 3-judge appellate panel with respect to this particular legal issue is whether the EDNY prosecutors provided enough evidence to support the unanimous verdict of the 12-member jury that Keith was guilty of Count 2: Racketeering and Count 1: Racketeering Conspiracy beyond a reasonable doubt.
The crime of Racketeering was established by Congress in 1970 as part of the Organized Crime Control Act (OCCA).
Although the focus of the OCCA legislation was clearly organized criminal gangs, the statute contains broadly written language that has been used in the intervening fifty years to prosecute a host of criminal activities and a wide range of criminal entities (As it turns out, one of my professors in law school was G. Robert Blakely, the author of the RICO statute).
The heart of all RICO-related prosecutions lies in Section 1962(c) – which prohibits “any person employed or associated with any enterprise…to conduct, participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity”.
In order to sustain a RICO charge, federal prosecutors must prove, beyond a reasonable doubt, that a “person” (which, as defined in the statute, includes various types of entities – and which specifically includes a “group of individuals associated in fact although not a legal entity”) committed “at least two acts of racketeering activity” within a 10-year period and that the acts in question are related, in at least one of four specified ways, to an “enterprise”.
The term “acts of racketeering activity” is defined in the statute, as amended, as follows:
- Any violation of state statutes against gambling, murder, kidnapping, extortion, arson, robbery, bribery, dealing in obscene matter, or dealing in a controlled substance or listed chemical (as defined in the Controlled Substances Act);
- Any act of bribery, counterfeiting, theft, embezzlement, fraud, dealing in obscene matter, obstruction of justice, slavery, racketeering, gambling, money laundering, commission of murder-for-hire, and many other offenses covered under the Federal criminal code (Title 18);
- Embezzlement of union funds;
- Bankruptcy fraud or securities fraud;
- Drug trafficking; long-term and elaborate drug networks can also be prosecuted using the Continuing Criminal Enterprise Statute;
- Criminal copyright infringement;
- Money laundering and related offenses;
- Bringing in, aiding or assisting aliens in illegally entering the country (if the action was for financial gain); and
- Acts of terrorism.
Insufficient Proof of One Enterprise
Bonjean begins by asserting that Keith and his inner circle did not constitute an “enterprise” as that term is defined in RICO.
In conjunction with this argument, she asserts that the government did not prove that the individual members of Keith’s “inner circle” were part of a single enterprise that “had a common purpose to engage in a course of conduct and that… functioned as a continuing unit”.
Instead, she argues that the government only proved that Keith was a criminal enterprise all by himself because he is the only one that connects the sixteen (16) alleged predicate acts that were included as part of Count 2: Racketeering.
As “proof” that the members of the inner circle did not act together for some common identifiable purpose, Bonjean points out that all three members of the inner circle who testified at Keith’s trial admitted that they didn’t know about some of the alleged predicate acts.
She also asserts that not everyone in the inner circle was just like every other member: i.e., some were leaders in NXIVM/ESP but were not part of DOS (e.g., Nancy Salzman and Clare Bronfman) – and some were members of DOS but were relatively low-ranking members in NXIVM/ESP. Some — like Barbara Bouchey and Mark Vicente — had left NXIVM long before Keith was arrested.
Bonjean concludes by arguing that because the government failed to prove the existence of a “single enterprise,” it failed to meet its evidentiary burden to bring a RICO charge in this case.
To support her argument, Bonjean cites one case from 1982 in which the Eighth Circuit Court of Appeals struck down the convictions of 22 defendants who had been charged under RICO.
As will undoubtedly be documented by the EDNY prosecutors in their responsive brief, the application of the RICO statute has broadened substantially in the intervening four decades since the case cited by Bonjean was decided.
And, as those same prosecutors will also likely point out, what Bonjean portrays as disparate groups that have been lumped together under the sobriquet “inner circle” are, in fact, simply different sections of one criminal organization that was headed up by Keith Alan Raniere AKA Vanguard.
Keith was well-known for compartmentalizing information – and for only sharing certain information with specific members of his inner circle.
Although Bonjean seeks to use this “management style” as the basis for showing that Keith and the 25-members of his inner circle do not qualify as a “single enterprise”, similar arguments have failed in numerous other RICO cases.
Hell – if it were that easy to beat a RICO charge, then members of organized crime syndicates would never have been convicted under RICO because their gangs organized – and functioned – in much the same way that Keith and his inner circle did.
So, while I can’t fault Bonjean for trying to argue that Keith and his inner circle did not constitute a single enterprise, I do not think that the 3-judge appellate panel will be convinced by her mere assertions that this is the case.
This is one area where the trial attorneys could have done a much better job in laying the groundwork for this portion of the appeal by calling several other members of Keith’s inner circle as witnesses – and questioning them as to how Keith and his inner circle functioned.
Just imagine what someone like Barabara Bouchey would have said under oath.
Insufficient Evidence of a Pattern of Criminal Activity
Bonjean next argues that the EDNY prosecutors failed to provide enough evidence to prove that Keith and the members of his inner circle engaged in a pattern of criminal activity.
In order to meet the burden of proof with respect to this element of the crime of Racketeering, the prosecution must prove that at least two of predicate racketeering acts occurred within ten years of one another – and that the two acts are related to one another and pose a threat of continuing criminal activity.
Bonjean correctly points out that the alleged predicate acts must be related to each other (which is termed “horizontal relatedness”) – and that they also must be related to the enterprise as a whole (which is termed “vertical relatedness”).
She then concludes this section of the appellant brief by arguing that the prosecution failed to show that the 16 predicate acts that were part of the racketeering charge against Keith were all related to one another – and claims that instead, those 16 acts actually fall into three distinct categories:
- DOS-related acts (Act 9 and Act 10);
- Non-DOS-related Acts (Act 1, Act 5, Act 6, Act 7, Act 8 and Act 11); and
- Camila-related Acts (Act 2, Act 3 and Act 4).
While Bonjean spends more than 10-pages on this section of the appellant brief, the prosecution will likely tear it apart with much less verbiage.
That’s because Bonjean has mistakenly asserted that all the cited predicate acts in a RICO case must be the same – which unfortunately for her and, once again, more unfortunately for her client, is simply not the case.
In essence, Bonjean is arguing that the Department of Justice could not bring a criminal RICO action against an organized crime boss if the underlying predicate acts were (a) 2 charges of murder, (b) 6 charges of extortion, and (c) 3 charges of armed robbery. This, of course, is an absurd argument – and one that I think will receive short shrift from the 3-judge appellate panel.
In my opinion, this was a waste of ten precious pages in the appellant brief – and is such a weak argument that it may undercut any of the good arguments that are contained elsewhere in that document.
For reasons that I do not entirely understand, Bonjean entirely ignores this charge in her appellant brief.
Indeed, the term “RICO Conspiracy” only appears twice in the 96-page document: once on Page 2 where she is listing the various charges on which Keith was indicted – and then again on Page 17 where she includes it in the list of charges that must be vacated.
Her failure to offer any arguments about this count is likely not going to change the decision of the 3-judge appellate panel.
But it does underscore the fact that the appellant brief has many weaknesses in it.
So, that’s it for the second 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 third of those issues – which is whether Keith was deprived of his Fifth and Sixth Amendment constitutional guarantees because the government introduced “…a mass of minimally probative yet highly prejudicial evidence related to Defendant’s controversial sex life”.
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. As time permits, I will respond to any of your questions and/or criticisms.
My wife and I are currently watching the Hand Maid series on Netflix.
There is something about it that reminds me of DOS, besides all the misogyny…..
Yes! ‘The handmaid’ is very DOS.
It’s the “breaking” of the women. The mental games. And the use of the older women to keep the younger women in line.
The questionable “mission”. The zealotry. The gender roles. The hypocrisy. The tattling on each other and high control.
The concept of the women sacrificing everything for some greater good and noble purpose. While the men sacrifice nothing.
The underserved assigning of “commander” and other vanguard-esque titles to those in power.
Not letting people read. Limiting outside information. Creating Us vs. Them environment. Going hard after “traitors/enemies”
The practice of a woman “belonging” to a man. And the man having multiple women but never the roles being reversed.
The clothes as a delineation of rank. Like the Nxivm sashes.
And the changing of the meaning of common words and creating their own insular language.
Lots of shared crazy. Would be a good school paper for someone.
Keith Raniere backs off of demanding a return to the Brooklyn courthouse for his restitution hearing; will instead be sentenced over videoconference from his prison in Tucson.
Just to clarify: the restitution hearing will not actually involve any “sentencing”. Instead, it will provide both sides with an opportunity to argue why they believe certain parties should/should not be eligible for restitution — and if they are eligible, how much they should get.
A restitution hearing is a legal proceeding in a criminal case whereby the court determined how much the defendant must pay to compensate the victim or victims of the crime. … If there is no probation or probation terminates, the outstanding restitution is generally converted to a civil judgment.
And your point is?
Jennifer Bonjean looks like a middle-aged stripper, at a dive bar, working the lunch crowd.
Great article as always!
Anyone notice, how Kieth resembles Quasimodo, The Hunchback of
It just occurred to me.
….the bells, the bells!
……the plane, the plane!
Terrorist cells also keep various participants selectively in the dark.
They are still destructive, criminal organizations.
Kristin Keefe, who did know everything, said it and BB published it online: no one among the top tier criminals knew of the other’s assigned crimes. This comment makes sense beyond the fact that as I mentioned previously Keith was always a very compartmentalized thinker. There’s an entire paradigm to that with “Keith’s” integration vs. disintegration, “whole” or “Holy” man discussion that I can prove he lifted from a WGA registered script I wrote that was purloined from our computers at home and the offices of our company.
(Not to mention Jeff’s “ANTICIPA” work for Carlos Slim Helu’s “Telmex” network or that of the MIT Media Lab experts we employed – as Jeff Apple did confirm to Frank, right Frank? Vivid as my imagination may be, at times. Lol.)
Wow, Clav, very impressive that you studied under the author of the RICO statute. Not that I understand it at all despite your very good explanations on here. (It’s not you it’s the complexity of it and I’m missing the legal bg basics and patience to follow.)
You know, your faith and passion for Justice is one of the main reasons I’m hanging in and I hope someday soon you’ll freely be able to tell your own story without the stone throwing, schlockery and Bangkokery noise that goes on around here. (Sssshh, don’t wake the babies or raise the restrained ghosts.)
These are very good. I do not think they have a hope on the no one enterprise point. There may have been some separation but no more than in a criminal gang where one does killing and another collects the money. They were all very linked here. Never mind that some of the women were telling others when they could even eat. Talk about close control and connection…
Dear Frank Report, especially KR Claviger:
Thank you for these detailed analyses. I have really enjoyed them. I love how I am learning about law this way.
Very rich analyses.
What to even say about Bonejob? Sorry. Madam Bonjean, ah mean.
Maybe Ah Just better go take a rest
Since Madam has got no case?
That could be. And so
to end with a fitting salutary here, and to make no mo’ bones about it
Ah shall evah remain
Skin-serely NOT yours, oh tattoo attorney
Lady. Or gentleman, ’cause what. (or ‘twat) do I know?
Hallelujah for that in any case
On a further note, is this a comedy hour or something, what with the “aka Prefect” and the vanguard manure? If so, please take a bow, ye scriptwriters.
Thanks for the fun you have provided, via linguistic waterslides which have left me rolling in the aisles.
God, that is soooo strikingly funny. Aka Organ Grinders Anonymous, aka executive suckcess. U like that?
As in cesspool fun by Raniere and old lady Saltshaker herself.
I do have to admit it all comes down to a real howl.
The explanations work for me, anyhow.
Remind me, please. What was the subject being addressed?
is the DOS over?
Nicki Clyne is still defending Keith Raniere. Does she have contact with women who were slaves?
I believe that the only way for Nicki to “wake up” would be to happen to her the same thing that happened to Allison Mack, that is, to feel the fear of being arrested.
I wonder what would become of Allison if she wasn’t charged with these crimes but Nicki was. Would it be Alison dancing outside MDC, etc.? Would Nicki have taken a plea deal once the child porn came to light?
Nicki is a tough nut to crack. I think Keith is a father figure to her. Allison had a father.
Until I read this post, I never realized that being listed as a member of Keith’s “inner circle” actually meant that the Feds considered you to be part of his criminal group. How interesting that this includes people like Barbara Bouchey and Mark Vicente — who, heretofore, have claimed the label of “victim.”
Captain Obvious er… um…Interested Observer (or would it be the illustrious Vanguard?) hmmmmmm 🤭
India Oxenberg came within a hair’s breadth of being indicted.
Former AUSA Moira Penzi stated that up to half the leadership of NXIVM were involved in criminal activity.
Luckily she has more connections and money than I.Q. points…
It’s impossible not to have considerable respect for India, isn’t it?
Shadow, take a bow to my favorite Rihanna song ever: Take a Bow. You remembered the words of Moira Penza, and those words bear repeating. There’s a ring of truth.
Plenty more RICO where that first batch got themselves popped. Right, New Torque? York, pork, whatever it is tonight? Who can tell anymore?
You make an excellent point! Your personal language signature gave you away. Even computer programmers have personal signatures with certain characteristics. It’s not just your vocabulary, but the way you go about composing sentences. Take care!
Nicki? In any case, that’s a better self-survival strategy from Keith so long as you ditch him soon enough, but I’ll bet the Feds beat you to it and it’s at least more based in the full truth than any production so far.
The Truth Will Set YOU Free!