Attorney Joseph M. Tully of Tully and Weiss of California represents Raniere.
The motion, known as Rule 33, permits the trial court to “grant a new trial if the interest of justice so requires.”
The Rule 33 motion will be filed in the court of US District Court Judge Nicholas G. Garaufis, who presided over the six-week trial of Raniere in Brooklyn between May and June 2019.
The jury convicted Raniere of
- Racketeering conspiracy,
- Sex trafficking,
- Attempted sex trafficking,
- Sex trafficking conspiracy,
- Forced labor conspiracy,
- Wire fraud conspiracy
Judge Garaufis sentenced him to 120 years in prison on October 27, 2020.
The Rule 33 motion is based on “newly discovered” evidence of alleged FBI tampering with computer files, Chakravorty said.
The tampering allegations focus on 167 images on a hard drive and a camera card seized during a raid at Raniere’s executive library on March 27, 2018, two days after his arrest.
The government manipulated these images, Raniere claims, to support its narrative that:
- The photos were taken in 2005 by Raniere
- With a Canon EOS 20D camera
- They were then saved to a Lexar CF card
- Then copied to an unknown computer
- And then backed up to a Western Digital hard disk drive.
On March 27, 2018, the FBI seized the Western Digital hard drive from Keith Raniere’s executive library.
The 167 images found on the hard drive are of 12 nude females known to Raniere. The government alleged that 11 women were adults, and one female was under 18.
The metadata in the images indicates that Camila, a Mexican native who lived in Clifton Park, where NXIVM was based, was 15 years old when she posed for 22 nude photos on November 2nd and November 24th, 2005.
Camila did not testify at trial.
The government relied on the metadata to prove racketeering acts of possession of child pornography and sexual exploitation of a minor.
Raniere’s newly discovered evidence of tampering comes in forensic reports prepared by James Richard Kiper, Ph.D., who served as an FBI Special Agent from 1999 to 2019.
Kiper claims that the FBI altered the evidence.
Kiper spent more than half of his 20 years with the FBI in cybersecurity and digital forensics as a forensic examiner, a trainer of forensic examiners, and a trainer of trainers of forensic examiners.
Kiper will provide the court with:
- Summary of Technical Findings
- Summary of Process Findings
- Analysis of the Testimony of FBI Special Agent Christopher Mills
- Expert Opinion Regarding Time to Review Digital Evidence
Dr. Kiper said, “In my 20 years serving as an FBI agent, I have never observed or claimed that an FBI employee tampered with evidence, digital or otherwise. But in this case, I strongly believe the multiple, intentional alterations to the digital information I have discovered constitute evidence manipulation. And when so many human-generated alterations happen to align with the government’s narrative, I believe any reasonable person would conclude that evidence tampering had taken place.”
One retired high-ranking government official familiar with the case and these developments said of Kiper, “One thing is for sure. There will be no attempt to undercut the expert unless they have an expert or firm that has a better resume. That will be hard to achieve.”
In addition to Dr. Kiper’s report, two other forensic reports will accompany the motion.
Steven M. Abrams, J.D., M.S, a cybersecurity lawyer, and Wayne B. Norris, an expert witness in digital forensics frequently retained in federal, state, and municipal cases, will provide reports of their examination of Dr. Kiper’s findings.
Motion to Stay the Appeal
Chakravorty said Raniere will file two more motions,
One is procedural.
Raniere filed an appeal of his conviction with the US Court of Appeals for the 2nd Circuit on May 7, 2021.
May 2, 2022 is the date that has been set for oral arguments with respect to the appeal.
A trial judge may not hear a Rule 33 Motion unless an appeal in the case has been concluded or stayed.
Raniere will move the 2nd Circuit for an order suspending his appeal until the Rule 33 motion is decided.
If the 2nd Circuit chooses to stay the appeal, the judge presiding over the Rule 33 Motion may order an evidentiary hearing and call witnesses before determining whether to grant Raniere a new trial.
Motion to Recuse
Chakravorty said that Raniere will also make a motion on Wednesday to ask Judge Garaufis to recuse himself from the Rule 33 Motion .
The motion is based on Raniere’s assertion that Judge Garaufis deprived him of a “fair trial by an impartial tribunal.”
“The standard is a ‘reasonable person, knowing all the facts, would question the judge’s impartiality,’ Chakravorty said, quoting a 2003 decision in the 2nd Circuit in the case of United States v. Yousef.
It remains unclear how the judge will react to the motion to recuse or whether the 2nd Circuit will agree to stay the appeal.
According to Chakravorty, details of alleged tampering will be part of the Rule 33 motion; FBI agents will be named; the serious tampering allegations are, if true, felony crimes.
The public will be able to view the Rule 33 Motion unless the judge orders it sealed.
Frank Report will report as it obtains more information.
Note: Keith Raniere’s Rule 33 Motion merely contains allegations, and all Americans are presumed innocent until proven guilty beyond a reasonable doubt in a court of law.
Will this motion be successful and set him free as he hopes?