On Friday, 2nd Circuit Judge Jose Cabranes denied Keith Raniere’s motion to stay his appeal.
Raniere filed one day earlier – on October 6.
Raniere asked the appellate judges to stay the appeal, so the district court could rule on his Rule 33 motion.
His Rule 33 motion contends the FBI tampered with evidence and committed perjury in his case.
Judge Cabranes gave no reason for refusing to stay the appeal. All the filings are in. It has been five months since oral arguments – the last stage of the appeal by the attorneys.
A possible reason for the denial of the stay is that a decision on appeal is imminent.
Raniere asked the 2nd Circuit to stay his appeal based on “newly discovered” evidence.” He claims the government substituted FBI forensic examiner Stephen Flatley for Brian Booth. Raniere alleges Flatley’s testimony would have been exculpatory. Booth’s testimony contradicted Flatley’s testimony at a previous trial.
FBI Forensic Examiner Stephen Flatley was assigned to Ghana during the last days of the Raniere trial. It is not known if he actually went to Ghana but he did not testify at trial.
Flatley testified in the past that all metadata is unreliable. Booth testified that EXIF data is very reliable.
EXIF data determines the age of 22 photos. The metadata indicates the photos were taken in 2005, when Camila was 15.
Raniere retained six forensics experts, including three former FBI forensic examiners.
he six are:
Retired FBI Agent and Forensic Examiner J. Richard Kiper, PhD.
Former FBI senior forensic examiner Stacy Eldridge
Former FBI Special Agent forensic examiner Bill Odom
Former State Constable and Cyber Lawyer, Steven Abrams
Former University of Delaware Police Captain Steven Bunting
Software Engineer Wayne B. Norris.
They made a joint statement concluding someone altered the photo metadata. The alleged alterations support the government’s narrative
At least some alterations occurred while in FBI custody, they said.
On October 6, AUSA Kevin Trowel called the assertion of FBI tampering “frivolous.” Trowel wrote in a court filing that the Rule 33 motion is “contradicted by the record in this case.”
Camila, the subject of the alleged photos, did not testify at trial. She spoke at Raniere’s sentencing. She said Raniere took nude photos of her starting in September 2005, when she was 15.
Suneel Chakravorty, Raniere’s power of attorney, denied the significance of Camila’s statement.
That does not contradict the allegation of FBI fraud. If anything, it invites more suspicion. The photos on the hard drive were dated November 2005, not September 2005. Forensic experts’ analysis shows an elaborate but botched effort to make the dates on the hard drive appear authentic. This resulted in inconsistencies and impossibilities in the metadata. This includes photos being planted on the hard drive, in a folder disguised to look like a computer backup from 2009.
Trowel’s colleagues are possibly implicated in the criminal alteration of evidence. His attempt to minimize this by calling it ‘frivolous’ is suspicious.
Raniere has asked Judge Nicholas G. Garaufis to disqualify himself on the basis of bias. If he or another district judge rules in favor of the Rule 33, the court will vacate Raniere’s conviction.
It is up to the DOJ whether to retry Raniere.
Alan Dershowitz, who represents Raniere and Clare Bronfman, said there is precedent that the charges will be dismissed “with prejudice” due to government criminal conduct.
This would mean the BOP would release Raniere from prison, and no new trial on the same charges can be brought against him.
It would also mean Bronfman could go free, since vacating the case could mean the original charges against her are extinguished.
Both appellants, Raniere and Clare Bronfman, are incarcerated.
If the Second Circuit denies the appeal, then jurisdiction returns to Garaufis. He would then decide whether to recuse himself or hear evidence under Rule 33. Because the appellate court has priority over the district court, Rule 33 is on hold.
If the Second Circuit grants the appeal, then Rule 33 has no standing. There could be a new trial, at the DOJ’s discretion, or they could unlock the cell and let Raniere free.
Currently Raniere is in the SHU and has been unable to contact anyone of his followers. They have expressed concern since they do not know what his physical condition is.