Claviger: Does Keith Raniere’s Appeal Have Any Appeal? – Part 5: Misrepresentations & A Waste of Space

Quick Recap

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.

**********

RICO Conspiracy

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.

**********

K.R. Claviger