Claviger: Does Raniere’s Appeal Have Any Appeal? – Part 8: Hail Mary Pass Incomplete as Time Expires

K.R. Claviger

This is the penultimate post in the series that I’ve been writing about Keith Raniere’s pending appeal.

In conjunction with that series, I’ve outlined the general rules and procedures regarding direct appeals – which is the type of appeal he filed.

I’ve also analyzed the first four “legal issues” that Keith’s appellate attorney, Jennifer Bonjean, raised in the appellant brief she filed on May 7, 2021.

The last post in this series will take a look at what might happen depending on the decision of the three-judge appellate panel that has already been assigned to Keith’s appeal.

Thanks for the many kind remarks about the series – and, along with you, I look forward to seeing how this all turns out.

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.

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 Part 7, I analyzed the fourth of those legal issues.

In this Part 8, I will be analyzing the fifth and final legal issue that Bonjean believes will get Keith acquitted – and awarded a new trial: i.e., whether Keith was denied his constitutional guarantees under the Fifth and Sixth Amendments because U.S. District Court Judge Nicholas G. Garaufis required the parties and witnesses to refer to individuals designated by the government as “victims” only by their first names or pseudonyms – which, according to Bonjean, signaled to the jury that the Defended should be presumed guilty.

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 Name Game Becomes an Issue

Having already requested and been granted extra time to prepare her appellant brief – and having already requested and been granted permission to exceed the usual page limitation for such documents – Jennifer Bonjean found herself in an unenviable position as she set about to draft this section of the document.

She was already near the expanded page limitation – and she had yet to address an issue that was argued before the trial started and that was definitely noticeable to anyone who attended the trial or read the transcripts from it: i.e., anyone who had been deemed a “victim” of Keith Raniere by the prosecution could only be referred to by their first name or a pseudonym (such as Jane Doe 4) during the course of the court proceedings. Others, who were not deemed to be a “victim” were referred to by their full name.

This somewhat unusual nomenclature rule came about as a result of Judge Garaufis’ ruling on a pre-trial motion that had been filed by the prosecution.

Keith’s attorneys objected to the proposed procedure – but were unsuccessful in convincing the judge that it was going to interfere with Keith’s constitutional rights and/or prejudice the jury against him in some other ways (Marc Agnifilo did preserve this issue for appeal – which is why Bonjean was able to include it in her appellant brief).

Bonjean’s argument with regard to this issue is that referring to victims via first names or pseudonyms “…impinged on defendant’s constitutional rights, including his Sixth Amendment right to confront witnesses and his right to be presumed innocent.”

Although she does not really explain why the use of single names for victims interfered with Keith’s right to confront them when they testified, she does make an interesting point that the use of single names could have convinced the jury that certain individuals were victims – and certain other individuals were co-conspirators – even before the trial began.

As Bonjean argues, “By allowing the government to identify victims and co-conspirators before proving its case, the district court implicitly told the jury that it should assume a crime occurred, and because identity was not [sic] issue in this case, this message resulted in a directive to assume the Defendant’s guilt.”

It would have been interesting to see what else Bonjean would have had to say about this topic if she had not run out of space to say anything more – but that’s what happens when you waste precious words in earlier parts of the brief arguing about legal issues that are likely unwinnable.

I also think this argument would have had a lot more merit if Keith had called other members of DOS as defense witnesses – and they were forced to disclose their full names in the same way that Lauren Salzman did.

But, of course, Keith chose not to put on any defense – which means he never got to request that his DOS witnesses also be referred to by their first names only – or by pseudonyms – if they had not been charged with any crimes and/or named as a co-conspirator (That would have created an interesting issue for the prosecution and Judge Garaufis to deal with).

All in all, I do not think there is enough in the argument set forth in the appellant brief to warrant the overturning of any of Keith’s seven convictions.

Had she been able to devote several pages to her argument about this issue – and had she explained why such a violation, if it occurred, was not simply a “harmless error” – Bonjean may have been able to be a lot more persuasive than her four paragraphs on the topic were.

But neither of those things happened – and, instead, we got just four paragraphs of arguments that were neither detailed nor persuasive.

And with that, it looks to me like the clock has run out on Keith’s appeal.

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Harmless Error Versus Reversible Error

RE: Constitutional Rights

Although many legal scholars believe there is no such thing as a “harmless error” when it comes to constitutional rights and criminal cases, appellate courts routinely rely on this concept to deny the appeals of convicted defendants.

The concept of “harmless constitutional error” allows the prosecution to argue – and for appellate courts to find – that even if a violation of the defendant’s constitutional rights occurred during the course of the trial, there is no basis for overturning the trial court outcome because the purported error did not actually undermine the verdict and/or change the outcome of the trial.

In Keith’s case, three of the legal issues that were raised on his behalf are related to assertions that his constitutional rights were violated.

• Whether he 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 his controversial sex life;
• Whether he was denied his constitutional guarantees under the Fifth and Sixth Amendments where the District Court prematurely terminated Marc Agnifilo’s cross-examination of Lauren Salzman; and
• Whether he 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, thereby signaling to the jury that Keith should be presumed guilty.

But because Bonjean did not offer even one compelling argument as to how the outcome of the trial would have been different had the three alleged violations of Keith’s constitutional rights not occurred, I think the Second Circuit Court of Appeals will either find that no such violations occurred – or that such violations, if they did occur, did not undermine the verdict and/or change the outcome of the trial.

The latter type of finding will likely keep Keith – and his dead-end believers – going for at least another 10 -15 years.

That’s because they will portray such a determination as another aberration of the U.S. justice system rather than recognize it as a common practice that happens in lots of other criminal cases all the time.

I can just hear them now…

“Even the appellate court agreed that Keith’s constitutional rights were violated during the trial but the Illuminati got to them too – and convinced them not to overturn his convictions and set him free. This is a travesty – and demonstrates, once again, that there will never be justice for Keith Raniere in the U.S. judicial system, blah, blah, blah…”

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RE: Other Rights

In addition to the above-described constitutional arguments, Bonjean also raised two other legal issues in conjunction with Keith’s appeal:

• Whether the government proved Keith 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); and
• Whether the government proved Keith guilty of RICO and conspiracy to commit RICO due to insufficient evidence of: (1) an enterprise; and (2) a pattern of racketeering.

As I already explained when I analyzed those two legal issues, I do not think that Bonjean’s arguments concerning either one of them are going to convince any of the three appellate judges to overturn any of Keith’s convictions.

Once again, the appellate judges will have the option of finding that even if Judge Garaufis did, in fact, make some errors in his rulings during the course of the trial with respect to these two issues, those errors were “harmless” because they did not undermine the verdict and/or affect the outcome of the trial.

And, once again, I am certain that Keith and his minions will scream “conspiracy” –  and all sorts of other things – if that’s how this part of the appeal is resolved.

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A Final Word

Hopefully, this series of posts has helped Frank Report readers to understand a little bit better how the appeals process works with regard to federal criminal trials – and provided enough information for them to be able to understand the decision that will likely be rendered by the Second Circuit Court of Appeals sometime next year.

In the final part of this series, I’ll offer my opinion as to why I think Keith’s direct appeal was so weak – and give an overview of what will likely happen when it is decided.

In the meantime, please 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.

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K.R. Claviger