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 Jennifer Bonjean filed on behalf of Keith Raniere on May 7, 2021.
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 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.
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 Part 5, I analyzed 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.
In this Part 6, I will be analyzing the portion of the appellant brief that focuses on the third legal issue that Bonjean believes warrants Keith’s convictions being overturned – and him getting a new trial: i.e., was he deprived of his Fifth Amendment and Sixth Amendment rights because the prosecution “swamped the jury with a mass of minimally probative yet highly prejudicial evidence related to Defendant’s controversial sex life”.
For those Frank Report readers who want to able to refer back to the appellant brief, you can find a link to it HERE.
Did the Prosecution Unfairly Focus Too Much Attention on Keith’s Sex Life?
Bonjean’s contention with respect to this legal issue is that the prosecution should not have been allowed to introduce so much evidence concerning what she refers to as Keith’s “consensual sex life” – and that “the vast majority of this evidence served no legitimate purpose and was designed to breed disgust and contempt for [him].”
She then goes on to list four specific types of evidence that she asserts the presiding judge in the case, U.S. District Court Judge Nicholas G. Garaufis, should have barred the prosecution from introducing:
- Thousands of chat communications between Keith and Camila when Camila was in her mid-20s, including several graphic sexual exchanges;
- Evidence that Camila, Daniela, Mariana – and other intimate partners of Keith – had abortions after becoming pregnant with his child;
- Medical records and testimony about Daniela and Camila’s abortions – including ultrasound photos of the fetuses; and
- Numerous photos of women’s genitalia that were taken during consensual sexual activities.
As Bonjean correctly points out, Keith’s lead trial attorney, Marc Agnifilo, did raise timely objections when all the above-listed evidence was offered by the prosecution. Thus, it appears that these issues have been properly “preserved” for purposes of this direct appeal.
The Chat Communications Between Keith and Camila
In fairness to Bonjean – and to Keith – it did seem to me during the course of the trial that some of the evidence that the prosecution was allowed to introduce had more to do with belittling Keith rather than proving any element of any of the crimes he was charged with committing.
Few Frank Report readers will ever forget the reciting of the conversation between Camila and Keith in which she pointed out it had been a long time since he had been able to achieve a full erection.
Nor will they ever forget Keith plaintively asking Camila if she liked the taste of another’s man’s seminal fluid more than his.
Or his assertion that his penis was at least a quarter-inch longer than another man’s penis.
Once again, however, my concern is that Bonjean’s approach will almost force all three appellate judges to read every word of the testimony that she asserts should not have been introduced.
And, once again, I don’t think that’s going to be very helpful to Keith or his appeal.
I don’t know if there was any way to avoid this conundrum once Bonjean decided – or, maybe more accurately, Keith decided – to make this one of the issues that were included in his appeal (I’ll have more to say about what role I think Keith had in deciding what issues to raise on appeal – and how to do so – when I’ve finished reviewing all five “legal issues”).
I do know, however, that Bonjean’s feeble attempt to include several references to Keith’s “consensual sex life” in this section of the appeal is likely not going to go unchallenged by the prosecution in its response.
As was clearly proven at the trial – at least proven beyond a reasonable doubt in the judgment of 12 jurors – the “consensual” part of Keith’s sex life only applied to his side of things.
For the women who were part of DOS and who testified during the trial, their sexual relationships with Keith were always overshadowed by the threat that the collateral they had provided to their “masters” might be released if they did not initiate – and maintain – those relationships.
Perhaps Bonjean was trying to subtly sway the three appellate judges into thinking that all the women who had a sexual relationship with Keith were, in fact, consensual participants.
But whatever her motivation was for making several references to Keith’s “consensual sex life” in this section, I think it was a bad decision.
Should the Abortion Evidence Have Been Excluded?
If there is any part of the appeal in which I think Bonjean didn’t do enough, it’s this issue.
I frankly never understood why the prosecution even chose to raise this topic as part of its presentation during the trial.
Abortions are a “hot button” topic for many Americans – and except for portraying just how much control Keith exercised over some of his female minions, this topic had little, if anything, to do with any of the crimes he was charged with committing.
I get that introducing evidence which indicated that the three sisters – Daniella, Mariana and Camila – all got pregnant via Keith and subsequently had abortions demonstrated that he is a total asshole but that is not one of the charges he was facing during the trial.
I don’t think this potential faux pas on the part of the prosecution is going to lead to an acquittal but it is a classic example of just how much the playing field is tilted in favor of the prosecution when a criminal defendant chooses to go to trial rather than take a plea deal.
As Bonjean correctly cites in her brief, there are Federal Rules of Evidence that are directly relevant to the overall issue she has raised in this section of her brief.
Federal Rule 401, for example, defines “relevant evidence” as that which “has any tendency to make a fact more or less probable than it would be without the evidence”, provided that “the fact is of consequence in determining the action”.
Federal Rule 403 then authorizes the exclusion of “relevant evidence” when “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury…”.
In my opinion, the outcome of Keith’s trial would have been exactly the same if the prosecution had not introduced any evidence about abortions.
And the fact that the prosecution was allowed to solicit third-party testimony about abortions – e.g., Lauren Salzman was allowed to testify that Keith told her that Mariana had several abortions and Daniela was allowed to testify that Keith told her Pam Cafritz had an abortion – only underscores just how much latitude Judge Garaufis gave the prosecution on this issue.
Even more egregious is the fact that the prosecution was allowed to discuss the abortion evidence in much greater detail by having a retired nurse practitioner testify about the different types of medical abortions – and what women experience when undergoing such procedures.
And to top things off, the prosecution was also allowed to introduce medical records for Daniela and Camila that detailed their abortions – and that included ultrasound images of their fetuses.
Although I do not think Keith is going to be acquitted of any charges because Judge Garaufis allowed all this testimony and evidence about abortions to be part of the trial, I do think Bonjean has a valid point in raising questions about the impact of this non-essential evidence on the outcome of the trial.
I also think that this issue – and other issues that will be discussed in later posts – should have been the core of the appeal and discussed in much more detail in the appellant brief.
Should the “Vulva Photos” Have Been Excluded?
In this section of the brief, Bonjean argues that the prosecution should not have been allowed to introduce what she refers to as “Binders of Vulva Photos”.
And while she concedes that it was appropriate for the prosecution to be allowed to introduce photos that helped established certain timeframes – e.g., Camila’s age at the time some of her photos were taken – she argues that it was simply unnecessary to provide the jury members with binders that contained “167 images of nude women and their vulvas”.
But just as she did in other sections of the brief, Bonjean undercuts her own arguments by making statements that are simply not true.
I do not understand, for example, why Bonjean asserts that “none of the women assert that the photos were taken under duress or without consent” – which is clearly not true and which is going to allow the prosecution to attack her overall credibility with the three appellate judges.
Once again, I think this is an issue that should have been omitted from the appellant brief.
Although it likely won’t happen, the mere thought that including this issue in the appeal might cause any of the appellate judges to review one of those binders is reason enough to have left it out.
Where Are We – and What’s Next?
We have now finished looking at the first three “legal issues” that are the basis for Keith’s appeal – and, in my opinion, things are not looking too good for his chances of being acquitted on any of the seven charges of which he was convicted.
But there are two more “legal issues” to be looked at – and although I think they are misplaced and underrepresented in the brief, I do think those issues offer more hope for Keith than the first three.
When I’m done looking at the other two “legal issues”, I’ll also offer my opinion as to why Bonjean chose the five issues she did – and why she ordered them the way they are in the appellant 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. As time permits, I will respond to your questions and/or criticisms.