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 (That 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 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 analysis of the first of those legal issues.
In Part 5, I analyzed the second of those legal issues.
In Part 6, I analyzed the third of those legal issues.
In this Part 7, I will be analyzing the fourth of those legal issues: i.e., whether Keith was denied his constitutional guarantees under the Fifth and Sixth Amendments because U.S. District Court Judge Nicholas G. Garaufis terminated Marc Agnifilo’s cross-examination of Lauren Salzman.
For those Frank Report readers who want to able to refer back to the appellant brief, you can find a link to it HERE.
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The Cross-Examination of Lauren Salzman
At long last – on Page 86 of her 96-page appellant brief – Jennifer Bonjean finally gets around to raising a legal issue that might actually have some merit: i.e., whether Judge Garaufis erred when he cut off a line of questioning that Marc Agnifilo was pursuing during his cross-examination of Lauren Salzman.
Before we get into the details of Bonjean’s argument on this issue, let’s just do a quick review of the context in which this event took place.
- On July 23, 2018, Lauren was indicted on the following counts: Racketeering Conspiracy, Racketeering, Forced Labor Conspiracy, and Wire Fraud Conspiracy. She was also named in the following predicate acts with regard to the Racketeering charge: Trafficking of Jane Doe 4 for Labor and Services, Document Servitude of Jane Doe 4, State Law Extortion, and Forced Labor of Jane Doe 9.
- On March 25, 2019 – less than two weeks after her mother, Nancy Salzman, entered a guilty plea to one count of Racketeering – Lauren pled guilty to one count of Racketeering and one count of Racketeering Conspiracy.
- In conjunction with her guilty plea, Lauren entered into a cooperation agreement whereby she agreed to testify as a prosecution witness – and, if she provided truthful testimony, the prosecution agreed that it would so inform the judge and that it would not make any recommendation as to what her sentence should be.
- Under questioning by Agnifilo, Lauren acknowledged all of the above-stated facts – and indicated that she faced up to 20-years in prison (Actually, if Judge Garaufis chose to give her two maximum sentences – and have them run consecutively, rather than concurrently, she was – and still is – facing a maximum sentence of 40 years).
And so it was in that context that Agnifilo cross-examined Lauren.
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What Actually Happened When Lauren Salzman Was Being Cross-Examined?
Lauren was the only co-defendant that the prosecution chose to call as a witness at Keith’s trial – and her testimony as a former member of his “inner-inner circle” was definitely important to its overall case against him.
Frank Report previously ran a multi-part series of articles about her testimony and cross-examination – the first twenty parts of which can be accessed at:
Throughout Lauren’s cross-examination, Keith was furiously writing Post-It Notes to Agnifilo – which she certainly was able to see.
And as the cross-examination went on, Lauren became increasingly emotional – especially when Agnifilo focused on her relationship with Keith, her feelings about the other women in his harem, her desire to have a child with him, and her feelings of inadequacy when it came to Keith’s expectations and standards for her.
Eventually, she was opening sobbing – and having difficulty answering Agnifilo’s questions.
The last question that Agnifilo asked – and that Lauren was able to answer – was: “What was your intention when you were in DOS?’’
Lauren’s answer was as follows: “My intention was to prove to Keith that I was not so far below the ethical standard that he holds that I was – I don’t even how far below I am. I was trying to prove my self-worth, and salvage this string of hope of what I thought my relationship might someday be, and I put it above other people, helping them in their best interest. That’s what I did when I was in DOS.”
It was at that point that Judge Garaufis intervened.
“Okay, that’s it. We are done”.
Shortly after that, Judge Garaufis ended the trial proceedings for the day – and dismissed the jury.
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Bonjean Misrepresents What Happened
Rather than simply make her argument that Judge Garaufis should not have cut off Agnifilo’s cross-examination of Lauren when he did, Bonjean deliberately attempted to mislead the appellate judges by misstating what happened – and by selectively quoting/misquoting from the trial transcript.
Here is what Bonjean says in her brief:
“After the witness was excused, defense counsel immediately addressed the court.
I don’t know why Your Honor cut off my cross-examination.
The court responded:
If you want to know, you went way over the line as far as I’m concerned with regard to this witness. You could have asked your questions and moved on to the next question, but you kept coming back, and I am not going to have someone have a nervous breakdown on the witness stand in front of – – excuse me, this is not DOS. This is not the allegations. This is a broken person, as far as I can tell, And whether she’s telling the truth, whether the jury believes her. I think it’s absolutely necessary that there be a certain level of consideration for someone’s condition And that’s really what this was. You had plenty of – if you have other things to say, you could have gone on and said them. But what I had here was, I had a crisis here. And not in my courtroom. I have to sentence this defendant and what you did was, basically, ask her to make legal judgments about whether what she did in pleading guilty was farcical that she took somebody else’s advice, some lawyer, so she could get out from under a trial. I thought that really went pretty far beyond the pale, frankly.
Mr. Agnifilo: Your Honor, I –
The Court: I took her guilty plea, sir. All right?
Mr. Agnifilo: I am not trying to argue with you. I am not trying to argue with you.
The Court: Then don’t argue with me.
Mr. Agnifilo: No –
The Court: You can take your appeal if you should not be successfully [sic]. I don’t want to talk about it anymore. I thought it was extremely excruciating. When I tried to cut off the line of questioning, you just went right back to the line of questioning. You could have gone on to something else. You could have.
I may not get everything right up here, but I will tell you, as a human being, it was the right decision. Alright? And before I’m a judge, I’m a human being. And that goes for everybody in this room, and it includes you and the Government. And I am not going to allow someone to be placed in this circumstance and that let it continue. I am the one who is disappointed. I’m done.”
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What Really Happened
Now, let’s look at the actual transcript from the day in question – and highlight in red what Bonjean left out.
THE COURT: Okay, that’s it. We are done.
AGNIFILO: Okay, Judge. Thank you.
THE COURT: You are done.
AGNIFILO: I know. I am done.
THE COURT: No, I said you’re done.
AGNIFILO: I know. I am.
THE COURT: So you can sit down.
Redirect?
HAJJAR: No, Your Honor.
THE COURT: Nothing?
HAJJAR: No.
THE COURT: All right, the witness is excused. You may stand down.
(Witness steps down.)
THE COURT: All right, we are close to five o’clock, members of the jury. We are going to recess for tonight. I’d like to remind you that it is very important that you follow my instruction and that you not discuss the case with anyone; not your family, your friends or business associates and not other jurors. In addition, you must not read, listen to, watch or access any accounts of this case on any form of media, such as newspapers, TV, radio, podcasts or the internet, nor research or seek outside information about any aspect of the case. Please do not communicate with anyone about the case on your phone, either through e-mail, text messaging or any other means, through any blog or website or by way of any other social media, including Facebook, Twitter, Instagram, or YouTube or other similar sites. You must not consider anything you may have read or heard about the case outside of this courtroom, whether you read it before or during jury selection or during the trial. And do not attempt any independent research or investigation about the case and do not visit any of the locations identified on the questionnaire or discussed during the course of the jury selection process and during this trial.
Tomorrow, we will have a full day of testimony. Friday, we’re off and then we have a long weekend and we will resume on Tuesday. The following week, the week of the third of June, we will have one day when we are going to recess due to a religious holiday, but that day, I’m not sure which date it is, but I am going to find out, right. I will let you know next week what day that’s going to be so you can make your plans.
Thank you very much for your attention.
All rise for the jury.
(Jury exits the courtroom.)
THE COURT: Please be seated. Is there anything else from the Government for tonight?
PENZA: No, Your Honor.
THE COURT: Anything else from the defense?
AGNIFILO: Yes, Your Honor.
THE COURT: Go ahead.
AGNIFILO: I don’t know why Your Honor cut off my cross-examination.
THE COURT: If you want to know, you went way over the line as far as I’m concerned with regard to this witness. You could have asked your questions and moved on to the next question, but you kept coming back, and I am not going to have someone have a nervous breakdown on the witness stand in front of — excuse me, this is not DOS. This is not the allegations. This is a broken person, as far as I can tell. And whether she’s telling the truth, whether the jury believes her, I think it’s absolutely necessary that there be a certain level of consideration for someone’s condition. And that’s really what this was. You had plenty of — if you had other things to say, you could have gone on and said them. But what I had here was, I had a crisis here. And not in my courtroom.
So you have your record, and if there is a conviction, you can appeal my decision to the Second Circuit, okay?
AGNIFILO: Your Honor, most respectfully – and I am not going to belabor the point — I think it is an important — she talked about the change in perspective, she did, and I’m trying to explore that change. I —
THE COURT: You did, in many different ways. Sir, I have a right and an obligation to control the extent to which something like this is put to a witness and you had that opportunity. You made your points. It’s all there, it’s on the record. And if I made a mistake, then you will have your opportunity if you should not be successful in gaining your client’s acquittal, and I’m just going to leave it at that. But I’m telling you, I was watching this witness.
AGNIFILO: I’m more concerned, quite frankly, about, I thought I took great pains to be appropriate and even-keeled.
THE COURT: Well —
AGNIFILO: I never raised my voice.
THE COURT: Look, I am not saying you are not a man — you are not a lawyer who maintains his composure. I am not talking about that. I am worried about her composure in this case. I have to sentence this defendant and what you did was, basically, ask her to make legal judgments about whether what she did in pleading guilty was farcical that she took somebody else’s advice, some lawyer, so she could get out from under a trial. I thought that really went pretty far beyond the pale, frankly.
AGNIFILO: Your Honor, I —
THE COURT: I took her guilty plea, sir. All right?
AGNIFILO: I am not trying to argue with you. I am not trying to argue with you.
THE COURT: Then don’t argue with me.
AGNIFILO: No —
THE COURT: You can take your appeal if you should not be successful. I don’t want to talk about it anymore. I thought it was extremely excruciating. When I tried to cut off the line of questioning, you just went right back to the line of questioning. You could have gone on to something else. You could have.
I may not get everything right up here, but I will tell you, as a human being, it was the right decision. Alright? And before I’m a judge, I’m a human being. And that goes for everybody in this room, and it includes you and the Government. And I am not going to allow someone to be placed in this circumstance and then let it continue. I am the one who is disappointed. I’m done.
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What the Hell Was Bonjean Thinking?
To begin with, Bonjean outright lied when she stated Agnifilo raised his objection about having his cross-examination ended immediately after the witness was excused.
By failing to acknowledge that the jurors had already been dismissed for the day – and were, therefore, not in the courtroom when the exchange between Agnifilo and Garaufis took place – Bonjean greatly reduced what might have been a valid appeal issue and instead, likely created serious doubts for the appellate judges about her own credibility.
Playing word games with appellate judges is a dangerous game – and one that savvy appellate lawyers know they should avoid.
It’s almost like Bonjean forgot that the EDNY attorneys are going to be filing a response to her arguments.
Even after pondering this matter for quite some time, I cannot figure out why Bonjean did what she did in this section of the appellant brief.
Instead of making the straightforward argument that Judge Garaufis’ decision to cut off further questioning of Lauren changed the outcome of the trial – which, by the way, I do not believe is the case – Bonjean has set up the prosecution for a slam dunk response.
Borrowing a term that is usually associated with a sporting event, Bonjean is about to get “posterized”.
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Valid Points May Not Prevail Because of Unnecessary Duplicity
Notwithstanding the negative impact of her duplicitous handling of this matter, I do think that Bonjean raised some valid concerns regarding Judge Garaufis’ decision to terminate Marc Agnifilo’s cross-examination of Lauren Salzman.
Whether Agnifilo waived whatever rights he had to continue questioning Lauren when he said “I know, I am done” in response to the judge’s statement that “You’re done” is an interesting legal issue.
The same is true with respect to Agnifilo’s decision not to attempt to recall Lauren to the witness stand the next morning – and to instead file a motion for a mistrial (That motion was quickly denied by Judge Garaufis).
The problem for Bonjean – and ultimately for Keith – is that by falsely describing what actually happened in court at the end of Agnifilo’s cross-examination of Lauren, Bonjean may have totally lost the ability to advance this issue on appeal.
That’s the kind of “strategery” that makes me wonder whether Bonjean really wants to see Keith win this appeal.
Maybe deep-down, she’s as appalled by his attitudes and behavior as many others are.
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Hope Is Fading Fast
We have now finished looking at the first four “legal issues” that are the basis for Keith’s appeal – and, in my opinion, none of those is going to result in his acquittal with regard to any of the crimes he was found to have committed.
In my next post in this series, I’ll be addressing the fifth and final legal issue – which is likely Keith’s only remaining hope for getting a new trial.
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.
How could she? Any appeal judges will want to read the exact transcript, immediately see she lied and how is that going to look?
Claviger-
Could it be that Bonjean stratagem is to prod the judges into fully examining the case via 1/2 truths?
Judges have been known not to fully examine the facts of a case.
An example:
In Massachusetts, one state judge was caught allowing his judicial law clerk to write his findings and decisions
https://casetext.com/case/in-re-curry-8
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It’s a stretch, I’m just giving her the benefit of the doubt. I’ve been judgmental regarding her appearance.
K.R. I’m loving this series (and especially thank you for the recap on Lauren’s testimony), but you’re kinda freaking me out! How can there still be hope?!
You maybe could have been a screenwriter with a cliffhanger ending like this!
I was in the courthouse on the day of Agnifilo’s questioning of Salzman in question.
Other than seconding the observation that Garaufis admonished Agnifilo with the jury dismissed (and therefore without any real prejudice), I think it has to be noted that Agnifilo was not stopped from pursuing a line of questioning but rather for repeating the same question over and over with a little rephrasing. It was clearly an attempt to badger Salzman as a witness, and by my recollection, only to elicit a non-material statement that she once loved Keith Raniere. Salzman’s response was that she thought Raniere “was the most ethical man in the world,” (and while I may not have gotten the phraseology 100% correct, I do recall that she made sure to say this in the past tense.)
As well, nothing prevented Agnifilo from calling Salzman to the stand the next day. I think Agnifilo probably prevailed on Raniere that he was not going to get a Matlock moment where the witness suddenly recants on the stand.
Claviger said: “That’s the kind of ‘strategery’ that makes me wonder whether Bonjean really wants to see Keith win this appeal.”
I don’t know Bonjean, only from doing a web search and reading about her. But I do know that for many criminal defense firms the partners focus on trial work and not appeals, because trials are where the big money is. Often, it is an associate or even a law clerk (law student intern) who drafts the appeals. These mistakes are so basic that I wonder if Bonjean had clerk(s) write it and then signed off on it (1) without knowing the issues, (2) because she didn’t read the transcripts for herself and (3) thus not recognizing when these ill-advised arguments were written. Reading the trial transcripts is the most tedious part of an appellate practice and are often the first short-cut made by experienced trial attorneys. It is slogging work for appellate counsel but in my experience it is an important task for an appellate attorney, who then can pass on the drafting of the appeal to a less experienced drafter since experienced counsel will recognize and excise misstatements of fact or losing arguments.
I agree with you that the initial draft of the appellant brief was likely done by a junior associate or a law clerk (As you correctly point out, that happens all the time). But Bonjean could have easily reorganized it so that the stronger arguments were the first ones presented — and she could have devoted a lot more space to those stronger arguments by dropping a lot of wasted verbiage.
I haven’t read enough of Bonjean’s other work to know if this is just par for the course for her — or if it’s an aberration. Either way, it does not bode well for Keith and his followers who hope to see him acquitted and set free.
Excellent analysis.
Judge Garaufis would not have invited Agnifilo to take his objections to the Appeals Court if he wasn’t on rock solid ground in cutting off Agnifilo’s line of questioning.
The judge was confident and self-assured in his statements. Agnifilo had the manner of a scared little boy. He knew he had crossed a line.
Going back further in the transcript, it’s obvious what Agnifilo was trying to do. He kept pounding Salzman on her intent. He was trying to trip her up on the sincerity of her guilty plea. And he was getting nowhere. Other than making her more and more upset. Her answers had become incoherent. That’s obvious from the transcript. Agnifilo was bullying her to no purpose. I doubt the appellate judges will fault Garaufis for his decision.
If these same old and not very compelling issues are the only ones that the Nxium Dead Enders and Keith’s Attorney can scrape up after years – and they really exaggerate and misrepresent them – it actually highlights how very little the prosecution erred in a sprawling case.
Even if you err on the side of caution and assume Bonjean wasn’t attempting to lie but simply exaggerated, that is still a serious mistake. Judges in general do not like exaggerations, especially ones that leave out rather important context. All this does is continue to reinforce the quick take I had on her from the beginning – she is in over her head. Or as Claviger theorizes, allowing her client to dictate too much of how she handles the case (hundreds of notes to his previous attorney?!?). Even assuming the latter still makes her look less than competent since controlling and fulfilling the legal needs (but not the client’s wants) is part of the job.