Is Vacatur the Remedy if FBI Tampered With Raniere Child Porn Photos?

The motto of the FBI is Fidelity, Bravery, and Integrity.

Vacatur is a Latin word used in American law. It means “it is vacated.” A rule or order that sets aside a judgment – such as a judgement of conviction – or annuls a proceeding – is vacatur.

A commenter, Abelard, wrote:

By Abelard

If I recall, the standard for Rule 33 relief is “in the interests of justice.” The victim, Camila, has confirmed via subsequent written affidavit that she had a sexual relationship with Raniere when she was underage.

I can’t recall if she authenticates the photos in that affidavit but Lauren certainly testified that the sex occurred, that it was Cami in the pictures, that the pictures were taken in Mexico, and how old she was at the time. So there isn’t much doubt about any of that, if there was, she can be put on the stand at a retrial. The judge and the 2nd Circuit are not going to be in a hurry to do a whole new trial just to put the victim of sexual assault on the stand. Not “in the interests of justice.” At most, the child pornography charge gets dismissed, which is basically irrelevant if the sexual assault charges stay in.

Quite a few people on this blog seem to think that “interests of justice” requires a new multi-week trial for Raniere, even if the results would be exactly the same, because maybe the government did a bad thing . . . because the misconduct must be “brought to light” or the bad actors must be “held accountable.” That’s not why you have a new trial. You have a new trial because, absent the government’s misconduct, there is a reasonable possibility that the result would be different.

It may be that someone in the FBI did something wrong. The place to judge that person is at their own criminal trial, not during a redo of this one. And the remedy is to punish them, not let Raniere go.

Frank Parlato Response

MK10Art painting of Frank ParlatoMr. Abelard, your thoughtful comment is well worth a little discussion.  First a few minor corrections for the record, if I may be permitted.

You wrote, the victim, Camila, has confirmed via subsequent written affidavit that she had a sexual relationship with Raniere when she was underage. Actually she did indeed make a written victim impact statement, but I do not believe this is an affidavit, that is it was not filed under oath. She also made an oral statement at Keith Raniere’s sentencing. That also was not under oath.

Further Camila is suing Raniere alleging the same conduct – her rape and abuse as a child. It will be under oath when she is deposed and, if she testifies, if it goes to trial.

Under oath or not, there is little doubt in my mind that she is telling the truth.

I do not believe Lauren testified that the underage sex occurred, or that it was Cami in the pictures. I do not believe Lauren was shown the pictures of Camila at the trial.

By the way, the Camila pictures were allegedly taken in Clifton Park, New York, and not in Mexico.

Regardless of where the pictures were taken, I agree with you, there isn’t much doubt that the rascal groomed then sexually abused this child.

However, I do not quite agree that the most Raniere’s Rule 33 will accomplish is that the child pornography predicate acts of the racketeering charges gets dismissed. Yourself and Mr. Claviger and quite a few others believe that the success of the Rule 33 is irrelevant if the other charges such as sex trafficking and other serious racketeering charges remain.

You may be right.

The big question is whether a new trial for Raniere is required if it is discovered that the government cheated.

I think you are right, Mr. Abelard, a new trial, if there is one, will result in a conviction for Raniere. However, a new trial is likely indicated.

To quote Raniere’s trial judge, Nicholas G. Garaufis, from an order he wrote in Chad Wolf v Donald Trump, “Under normal circumstances, vacatur alone is the proper remedy for unlawful agency action.”

The vacating of Raniere’s conviction and hence most likely new trial is, in my mind, the proper remedy for government cheating – if they did cheat – which is far from proven – by tampering with photos of Camila.

We do not know if they cheated. Odds are they did not. But it should be investigated.

I do agree completely that if someone or several individuals at the FBI tampered with evidence, regardless of whether it would result in vacatur or not, they should be prosecuted. If convicted, they should serve a prison sentence.

If they cheated, in my opinion, the remedy is both vacatur and to punish them.

This will not likely result in Raniere gaining freedom.  He will be convicted again.

Keith Raniere before learning about the fate of his Rule 33 motion.
Keith Raniere after learning that vacatur was the result of the Rule 33 motion.
Keith Raniere after the jury brought in their verdict – after seven minutes of deliberations – for his new trial. Check out those eyes.

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Frank Parlato

24 Comments

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  • Why didn’t Suneel write this article?
    Isn’t Suneel the Rule 33 The FBI tampered with the photos guy?

    Did he decide to duck and cover now that people in authority are asking questions and or now that Raniere has a new attorney?

    Did Suneel get replaced by Tully and was told to Stand Down by Raniere’s new CA Court TV Attorney?

    It’s too bad, Suneel is a nice guy, but miss lead by Raniere and Clyne.

    Used by both until he is out of the money he made off the sell of his company is most likely what will happen to Suneel. It’s Raniere’s pattern.

    He will be tossed aside as Suneel will hold no other value for Raniere. Just like others who have come before him.

    Belief in this Rule 33 when it’s filed, the FBI agent is arrested, and found guilty. Until then, yawning

  • Thanks for responding, Frank, and apologies for the mistakes about the record. I disagree with your reading of the Wolf order. It seems like the Wolf case is about whether an agency regulation was validly enacted. A regulation that was created entirely by the agency that is guilty of misconduct – and a jury verdict that was created by 12 impartial persons who analyzed a mountain of evidence of which the misconduct is only a part – are very different things. So I don’t think Wolf is predictive of what the judge will do here.

    That the victim impact statements were not under oath is a fair point and, to me, is the only decent argument for Raniere, because you technically have a right to confront witnesses under oath. But, having thought about this some more, there is an additional reason why, for practical purposes, there won’t be a new trial.

    Claviger has pointed out, and I take it as true, that the photos only related to the child porn charge and nothing else. So if they are questions about their admissibility, there could be a new trial on that charge. Unless some quirk of RICO requires otherwise, the other counts will stand. The judge won’t vacate everything over one charge, because that would require him to find that the photos were so prejudicial that the jury convicted merely to punish Raniere for the child porn. In light of the plentiful evidence on the other charges, no way he does that. The government will not go forward with a retrial for this one charge. It will simply drop it, and Raniere will be re-sentenced based on the other charges.

    And this is how it should be, in my opinion. What would a completely new trial accomplish, really? What would be different? The difference is that Raniere would make this argument: “Jury, the government is very bad and sleazy. Because they did something wrong with evidence on charge 11, please find me not guilty of charges 1-10 even though the evidence is overwhelming.” This is a direct appeal to emotion and revenge and asks the jury to disregard the law instead of following it. In legal parlance, that is called jury nullification and it’s not allowed. Juries are not allowed to let the guilty go free because they don’t like the prosecutor or the police. A new trial could serve no purpose other than to allow Raniere to ask for nullification.

  • If.
    If
    If.

    There is no proof of “tampering”

    IF the moon is made of cheese, then maybe the earth is a flat cracker and the other planets in our solar system are olives and other snacks?

  • Stock up on popcorn if there is a new trial. At the last one, many people were still fearful and unsure whether to come forward as they did not know the extent of the manipulation KR and company indulged in. Now with the Bronfmans & Salzmans and KR away, many have had the chance to reassess and are more likely to come forward with their own stories and experiences. Just hope, if there is a new trial, that KR will be made to pay for wasting prosecution time, as well as his own costs. The funds put up by CB must be exhausted by now. Where will a man who has declared (under oath) assets of 60K find the money? That’ll be interesting in itself. Maybe Suneel will stump up, although he doesn’t seem to have offered to pay for Cline, Porter and Danielle.

  • Is it not true that all the other defendants did not capitulate and take guilty pleas until they were told of the child sex/pornography charges by the prosecution? If so, the FBI evidence affected more than Raniere. And Camila did not testify which seems wrong. And her lawsuit depends on his conviction on the child porn. It is all a bit disturbing.

    • Nancy Salzman pled guilty before the second superseding indictment was announced. Whether her attorneys knew that it was coming – and that it contained a charge of possession of child pornography as a predicate act – is a matter of speculation.

      The civil lawsuit does not “depend’ on Keith’s conviction of possession of child pornography but that conviction will undoubtedly come out during the trial. On the contrary, there are all sorts of allegations that must be proven in order for the plaintiffs to win in the civil lawsuit.

      Lastly, how many of Keith’s co-defendants do you think knew about – or should have known about – the allegations that had previously been made against him with respect to statutory rape and child molestation?

  • Frank, I see you did not post my other comments even though I sent you the articles where they were at! Time’s up!

  • “Yourself and Mr. Claviger and quite a few others believe that the success of the Rule 33 is irrelevant if the other charges such as sex trafficking and other serious racketeering charges remain.

    This is the first time I’ve seen a gender assignment for Mr. Claviger on the Frank Report.

    I apologize for imagining Claviger as a woman from the interactions I’ve had with him.

    Please forgive me.

    Alanzo

    • I do not think Claviger ever revealed his gender before and if I have let the cat out of the bag I am sorry.

      I should clarify also that I think [but I am not completely certain] that male is his assigned gender and I am certain he is identifying as a male.

    • Why would it be a matter of forgiveness if he were a woman? I bet there are at least ten women regularly contributing to this site, many more reading… who are smarter, stronger, infinitely more attractive and powerful— did I forget to mention?— earn more in a year than you’re likely to make in a lifetime. Whereas, you are more of a basic bitch, Alonzo. Way too much estrogen in your psyche. Sorry bout that.

If the whole world stands against you sword in hand, would you still dare to do what you think is right?

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