Raniere Motion Accuses Judge of Bias, Anger, Prejudice, Dishonesty – Wants Him Off FBI Tampering Motion

Judge Garaufis stopped the cross-examination of Lauren Salzman.  Tully argues that Agnifilo was trying to show a lack of criminal intent by Raniere through Salzman.

**** From the transcript:

Mr. Agnifilo: What was your intention when you were in DOS?

The Court: You may answer.

Ms. Salzman: 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 know how far below I am. I was trying to prove my self-worth, and salvage this string of a hope of what I thought my relationship might someday be, and I put it above everything else; I put it above my friends, and I put it above other people, helping them in their best interest. That’s what I did when I was in DOS.

The Court: Okay, that’s it. We are done.

Mr. Agnifilo: Okay, Judge. Thank you.

The Court: You are done.

Mr. Agnifilo: I know. I am done.

The Court: No, I said you’re done.

Mr. Agnifilo: I know. I am.

The Court: So, you can sit down. Redirect?

Ms. Hajjar: No, Your Honor.

The Court: Nothing?

Ms. Hajjar: No

.

The Court: All right, the witness is excused. You may stand down.

(Witness steps down. The judge dismisses the jury]

Tully argues:

As Ms. Salzman was describing her intentions within DOS, which would refute the government’s theory of the alleged racketeering elements of the case as well as the government’s contentions about Mr. Raniere’s nefarious mens rea, Judge Garaufis abruptly ended not just Mr. Agnifilo’s line of questioning, but the rest of his cross-examination entirely….

Further, when Mr. Agnifilo acquiesced by stating, ‘I know. I am done,’ Judge Garaufis continued to bully, ‘No. I said you’re done,’ and then ordered Mr. Agnifilo to sit down. All of this was done in full view of the jury.

Shockingly, the Court then invited the prosecution to attempt to rehabilitate their witness before she was dismissed. Thus, there can be no excuse that Judge Garaufis, by cutting off Mr. Agnifilo, was merely trying to spare the witness or have her collect herself emotionally….

The contrast in treatment by the Court that the jury observed towards Mr. Agnifilo, clearly demeaning him versus respectfully assisting the prosecution, shows impermissible favoritism…”

After the jury recessed, Agnifilo said: 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?

Mr. Agnifilo: Your Honor…. She talked about the change in perspective… I’m trying to explore that change.  —

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.

Mr. Agnifilo: … I took great pains to be appropriate and even-keeled. 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 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. I took her guilty plea, sir. All right?

Mr. Agnifilo: 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 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.

(Judge exited the Courtroom.)

Tully writes: When Mr. Agnifilo asked the question that prompted Judge Garaufis to halt … cross-examination…  Judge Garaufis had clearly ruled on the legal validity of Mr. Agnifilo’s question by telling the witness, “You may answer.”

To then, minutes later, claim that the reason he halted… the cross-examination was because Mr. Agnifilo had allegedly repeatedly entered into legally improper territory is nothing other than a blatant misstatement, gaslighting, a lie, or all three….

The Court made personal conclusions about the veracity of Ms. Salzman, the government’s main cooperating witness, about DOS… at issue in the case, and about Mr. Raniere’s culpability… These personal views prevailed over a neutral application of the law, precluding the full and fair examination of the witness…

Judge Garaufis’ statement, “I am not going to have someone have a nervous breakdown on the witness stand in front of – excuse me, this is not DOS,” demonstrated that the Court’s biased belief that DOS was harmful…

Judge Garaufis’ final remarks on this issue, “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,” again showed that he applied and believed in his personal views instead of the law.

In that statement, the Court admitted to letting extrajudicial emotions, biases, and prejudices come before the rules of evidence or the United States Constitution…

The Court could have called a break in the proceedings to permit the witness to compose herself or held a sidebar to inquire about the Defense’s line of inquiry and its appropriateness. However, the Court instead ended the examination in its entirety, dismissing the witness from the stand, precluding the possibility of any further questioning, and demeaning defense counsel in front of the jury — for asking a question it had permitted.

The fact that Judge Garaufis… declared his reasoning behind his ruling to be based on sympathy for a witness which affected him as a human shows that Judge Garaufis will prioritize his humanity, ignore the law, and abandon his judicial ethics, obligations.

Accordingly, such conduct necessitates his disqualification in this case.

Restitution Hearing

Tully writes: It was the first appearance for counsel Jeffrey Lichtman and, appearing on behalf of Mr. Raniere….

Mr. Lichtman and Mr. Fernich were new to the case, and… had spoken to Mr. Raniere on the phone once, for about one hour… but had been unable to see him before the hearing….

Judge Garaufis afforded Mr. Lichtman and Mr. Fernich a brief recess of five to ten minutes to speak with Mr. Raniere, who appeared via video conference. After that recess, Attorney Fernich indicated… he may want to reconvene with Mr. Raniere, perhaps in person,

Fernich: “[M]aybe we better get out there if it depends on factual things that are beyond my grasp that maybe Mr. Raniere can elucidate.”

The Court: Mr. Fernich, I’m not conducting a maybe possibly it’s okay, but maybe it’s not okay for the judge to issue a decision. That’s not how judges work, sir. And this judge certainly doesn’t work that way. You took this on. You’re being paid by Ms. Bronfman.

Mr. Fernich: Unfortunately, Judge —

The Court: Let me finish. And I don’t want to be interrupted by any lawyer in this courtroom. When you took on this retainer, you knew what your job was, and you could have gone and seen the client and talked to the client, and reviewed the submission of the government’s with the client. And I’m not going to waste my time waiting for you to decide whether what I’m doing is adequate to meet your obligations. It ain’t gonna happen.

Mr. Fernich: May I respond?

The Court: No. I’m not finished.

Mr. Fernich: Okay.

The Court: No one has ever asked me to issue – to say, “If you issue a decision, I’m going to stop you and tell you I want something else. I want to go see my client.” That’s not how it works. You know it’s not how it works. What is your answer to that?

Mr. Fernich: Well, my answer, your Honor, is twofold: It’s not like going to the MDC or the MCC. We did, of course, attempt to get cleared for visiting in the designation facility, and we were not able to accomplish that with the facility within a week’s time.

Tully writes: Judge Garaufis asked Mr. Fernich where on the docket was a request for an adjournment to visit Raniere.

Mr. Fernich did not have the docket but stated he wrote a letter requesting a week’s adjournment because the Defense could not be “reasonably prepared.” The Court granted two days and quibbled that the Defense did not specifically ask for time to visit Raniere, leading to the below exchange.

The Court: It’s cute by half.

Mr. Fernich: No, sir.

The Court: I have nothing more to say to you on the subject. We’re done.

Mr. Fernich: That’s fine, your Honor….

Tully writes: Judge Garaufis’ animus and antagonism could not be contained, and he immediately goaded Mr. Fernich into further conflict:

The Court: Is there anything else you want to answer me back about?

Mr. Fernich: Excuse me?

The Court: Every time I say something, you’ve got something else to say on that subject.

Mr. Fernich: I’m sorry, I’m not following the Court.

The Court: The request was for extra time to make the submission, not to adjourn the proceeding. And you didn’t request for time to go see your client in Arizona. That’s not what you requested.

Mr. Fernich: Not specifically, sir.

The Court: You’re misleading, trying to mislead.

Mr. Fernich: Sir – -.

...

The Court: There’s nothing else we’re going to say about that. You’re the same individual who told me you had to go to a funeral today for someone who was not a member of your family when the funeral was at 11:45 and you could have been here at 2 o’clock, which you were. I’m tired of this. We’re not getting off to a good start, Mr. Fernich.

Mr. Fernich: Your Honor —

The Court: Are you going to sit here, counsel, while he does this?

Mr. Lichtman: Judge, I think that we can move past this. You’ve made the decision, we respect it, and we’re ready to hear the decision.

The Court: Does your client have anything else he wants to say before I sentence him with regard to restitution?

Mr. Lichtman: No, your Honor.

The Court: Thank you.

… Judge Garaufis entered the proceedings only concerned with completing the hearing, a disdain for Ms. Bronfman paying for Mr. Raniere’s legal fees, pettily creating conflict with Mr. Raniere’s new counsel where none existed, and was personally attacking Mr. Fernich….

Judge Garaufis did move on to issuing decisions on restitution….

[Afterward] Judge Garaufis again sought conflict…

The Court: Anything else from the Defense for today?

Mr. Fernich: No, sir. Just so the record is clear, nothing that the Court has said undermines my advice to Mr. Raniere –

The Court: Excuse me, excuse me.

Mr. Fernich: Yeah.

The Court: No speeches. Not in my courtroom. If there’s nothing else…

Mr. Fernich: There is absolutely nothing dilatory about my request –

The Court: Excuse me.

Mr. Fernich: — to go to a close —

The Court: Excuse me.

Mr. Fernich: — colleague’s and friend’s funeral —

The Court: Excuse me.

Mr. Fernich: — who passed —

The Court: Excuse me.

Mr. Fernich: — over the weekend.

The Court: Excuse me.

Mr. Fernich: Nothing dilatory about that.

The Court: Excuse me.

Mr. Fernich: And I resent the insinuation.

The Court: Sir, you can resent anything you want.

Mr. Fernich: I do resent it.

The Court: You’re well compensated for your work by your client –

Mr. Fernich: That is absolutely immaterial to the humanity of going to a funeral of an esteemed member of the bar of this court who passed in the middle of the night Sunday, sir. That is human decency and professional courtesy, and you did not afford me it. And I resent it. And you’ve compounded it by telling me —

The Court: Excuse me.

Mr. Fernich: — I was trying to delay this proceeding?

The Court: You wanted the day off, sir. You wanted–

Mr. Fernich: I wanted the day off to go to Joel Winograd’s funeral, who died of pancreatic cancer on Sunday morning?

The Court: Give him this to go cry on. He’s not a member of your family, sir.

Mr. Fernich: This demeans you more than —

The Court: You have an obligation to this Court —

Mr. Fernich: And I’m here.

The Court: Be seated or I’ll have you arrested.

Mr. Fernich: You have me arrested.

The Court: Be seated.

Mr. Fernich: This demeans you more than me.

The Court: Be seated.

Mr. Fernich: It’s a disgrace. It’s a disgrace. It’s a lack of human decency.

Mr. Lichtman: Stop.

Mr. Fernich: And it’s disgraceful. You can stare at me all you want, your Honor.

Mr. Lichtman: Stop.

Mr. Fernich: All you want.

The Court: One final thing I’d like to say. I’m from Queens. And the attorney asked to go to a funeral at 11:45 this morning in Fresh Meadows. He could have gone to the funeral, attended the funeral of his friend, and then come to court at two.

Mr. Fernich: And interment and then —

The Court: Excuse me.

Mr. Fernich: — Shiva afterwards.

The Court: Excuse me.

Mr. Fernich: It is false. Anyone who knows the traffic around here —

The Court: Will you keep quiet?

Mr. Fernich: No, sir, I will not.

Mr. Lichtman: Stop, stop. Enough.

Mr. Fernich: Not if you slander me in public that way.

The Court: The attorney could have gone to the funeral and come here to court at 2 o’clock. But it would have required me to adjourn this proceeding if I had allowed him to go to the cemetery, which I did not.

Mr. Fernich: I asked for one hour. A one-hour delay is what I asked for. And you know it. And it’s a matter of public record.

Mr. Lichtman: Stop.

The Court: I’ve never seen anything like this.

Mr. Fernich: Nor have I, sir.

The Court: I’m not asking you for your comments.

Mr. Fernich: I know you’re not.

Mr. Lichtman: Stop it. (Pause in proceedings.)

Mr. Lichtman: Judge, may I approach?

The Court: No.

Mr. Lichtman: Okay. (Pause in proceedings.)

Mr. Fernich: Can we speak privately?

The Court: This is a criminal matter. Everything is on the record.

Mr. Fernich: Okay. (Pause in proceedings.)

Tully writes:

Here, the pause in proceedings was a bizarre approximate thirty minutes of Fernich and Judge Garaufis staring at each other.

Despite Judge Garaufis’ claimed excuse for failing to adhere to Mr. Raniere’s Sixth Amendment right to confront the government’s main cooperating witness, Lauren Salzman, during jury trial – that he was a “human being” “before [he was] a “judge,” it is fair to say that Judge Garaufis’ humanity certainly did not prevail over his judicial role in denying Mr. Fernich a one-hour delay in the proceedings so Mr. Fernich could attend a friend and colleague’s funeral and shiva.

Judge Garaufis even justified his personal attacks against Mr. Fernich because Mr. Fernich was “well compensated” for his work…. The Court denied Mr. Fernich’s request for a one-hour delay to attend the funeral of a good friend. However, the Court was willing to waste thirty minutes sitting there, on the record, doing nothing….

Judge Garaufis justified his personal attacks against Mr. Fernich on the unsubstantiated supposition that Mr. Fernich was “well compensated” for his work, and further implied that counsel could give the decedent “this to go cry on,” meaning the exchange between counsel and the court, because the decedent was not a member of Mr. Fernich’s family.

Clare Bronfman’s sentencing by Judge

Tully writes:

…The Court imposed a sentence of 81 months, which was three times the maximum sentencing range provided by the United States Sentencing Guidelines for Ms. Bronfman. This sentence was nearly two years longer than even the prosecution had requested …

Of specific note was the Courts’ focus on how “Ms. Bronfman’s allegiance to Raniere shines through again and again. She has paid his legal fees and, to this day, maintains that he ‘greatly changed her life for the better.’”

The Court imposed its improperly excessive sentence, not based on any alleged crimes Ms. Bronfman was convicted of but based on her personal connection to Mr. Raniere. …. Thus, it is not criminal culpability that Judge Garaufis used to sentence Ms. Bronfman, but rather his personal hatred of Mr. Raniere….

None of Ms. Bronfman’s co-defendants received a prison sentence above the guidelines’ range. Ms. Bronfman pled guilty to white-collar crimes. In contrast, Ms. Mack and Ms. Salzman pled to far more serious offenses, including racketeering and racketeering conspiracy, and were found to be central figures in DOS. However, only Ms. Bronfman, who maintained a personal connection to Mr. Raniere, was unfairly treated. The Court admitted as much when it stated that one of the factors that led the Court to show leniency to Ms. Mack and Ms. Salzman was that, unlike an “other individual who have remained deferential to Mr. Raniere,” both had turned the page on the part of their lives during which they were devoted to him….

Judge Garaufis took his extrajudicial views of bias, prejudice, and partiality against Mr. Raniere and applied each as a multiplier to Ms. Bronfman’s sentence to give her “three times the high end of the Guidelines range.”

This is unmistakable evidence of his bias against Mr. Raniere, which necessitates Judge Garaufis’ disqualification in this case.

***

Tully writes: The record, in this case, is replete with instances in which a reasonable individual would undoubtedly question the Court’s impartiality and entertain a significant doubt that justice had been done.

More importantly, a reasonable individual would also undoubtedly question the Courts’ ability to disinterestedly and appropriately evaluate the evidence that the Defense has uncovered and petitioned for a new trial under Rule 33 of the Federal Rules of Criminal Procedure…

By Judge Garaufis’ voicing of his personal feelings about the participants in this case — his animus toward Mr. Raniere, his sympathy for Ms. Salzman as a “broken” individual… his anger at Mr. Raniere’s defense counsel, and his contempt for Ms. Bronfman due to her refusal to “renounce” Mr. Raniere — showed such clear evidence of personal bias that there can be no question that the proceedings were colored by injustice…

In this case, disqualification and reassignment are the only way to preserve Mr. Raniere’s rights, the rule of law, and justice — let alone the appearance of justice…. Judge Garaufis cannot engage neutrally and impartially moving forward. Only a new judge can fairly adjudicate any further issues in this case without these pre-existing biases and prejudices….

Anyone who had entered the courtroom and witnessed Judge Garaufis’ outrageous comments during trial, at the restitution hearing, or at sentencing, would have concluded that the judge was biased against Mr. Raniere and his counsel, and that the tribunal before which Mr. Raniere was tried had neither just nor did it present the appearance of justice….

Judge Garaufis’ expression of bias, prejudice, and partiality against Mr. Raniere has clear extrajudicial motivations. Consequently, his disqualification is necessary and appropriate. Thus, Mr. Raniere respectfully moves this Court to disqualify itself from any further proceedings in this case.

Frank Parlato