By Kristin Keeffe
As many readers of the Frank Report know, Keith Raniere’s Rule 33 motion for a new trial is finally about to be decided.
His reply to the government’s opposition to his motion is due November 30th. After that, it’s up to the judge.
I have been reluctant to read the legal filings or pay close attention to the reporting since Keith’s attorney, Joseph Tully, filed this motion in May 2022.
I am aware that Keith retained Alan Dershowitz (who held a press conference) and other white-collar criminal defense attorneys/experts to be on his team and swear to the injustice of Keith’s case.
I also know Clare is funding a documentary about the alleged FBI tampering:
My reluctance to read the Rule 33 motion stems from my imagining, in advance, Keith’s confusing, infuriating nonsense and intelligently disguised lies, all dressed up as “a crusade for truth.”
And how demoralizing going through that would be.
If there is one thing I know about Keith, it’s that he lies as a way of life, and many lawyers and experts do too – no matter what their credentials – if the money is right.
By now, all of Keith’s team will have received life-changing amounts of money from Clare Bronfman. Like, buy a house in Switzerland. Pay all your grandchildren’s college tuition kind of money.
For the lesser-known members of Keith’s group of lawyers and experts, being on a case covered by the national media – win or lose – helps them enormously.
- “Evidence was planted”
- “The FBI is so corrupt.”
- “The DOJ can’t be trusted.”
These days, saying such things and making it into the national news cycle is a considerable boon to one’s career.
Conspiracy theories are big business these days. Conspiracies sell.
Delving into Keith’s Rule 33 Motion
Despite my misgivings, I decided to read Keith’s Rule 33 motion once and for all, learn firsthand what all the fuss is about, and write about it.
Before I did, I first decided to read the government’s response in opposition. Assistant US Attorney Tanya Hajjar wrote the response.
Keith’s Motion By Tully
In my opinion, Tully’s writings on behalf of Keith are convoluted and strangely hyperbolic. I wouldn’t have understood the gist of his arguments or the alleged evidence supporting Raniere if I had started with Tully’s papers.
To begin with, Raniere is seeking a new trial because he alleges “newly discovered evidence” shows:
- “The government manufactured child pornography and planted it on a computer hard drive to tie it to him.
- The government “falsified, fabricated, and manipulated all the key evidence it used” to convict Raniere of the child exploitation and child pornography predicate offenses.”
Keith’s motion relies on an expert report of “findings” by a retired FBI agent named Richard Kiper.
He hired Kiper to make a forensic examination of the electronic evidence used to support Keith’s conviction of racketeering predicate acts of child pornography and sexual exploitation of a minor and to give an opinion on evidence handling by the FBI
J. Richard Kiper, FBI, retired.Kiper began work on his “findings” in May of 2021, almost two years after Keith’s conviction.
Hajjar’sHajjar’s Opposition Papers are Succinct
Hajjar’sHajjar’s response, opposing Raniere’s tampering claims, is concise, succinct, and logical. Reading them in their entirety is a must for anyone following this case closely.
Let’s examine what she wrote and filed.
MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT KEITH RANIERE’S THIRD MOTION FOR A NEW TRIAL PURSUANT TO FEDERAL RULE OF CRIMINAL PROCEDURE 33.
Raniere’s Rule 33 Motion is Without Merit:
The government is seeking a dismissal of Raniere’s Rule 33 motion.
AUSA Hajjar wrote it is “untimely, unfounded, legally unsupported, and contrary to the evidence adduced at trial.”
She writes that the government proved at trial that Raniere produced child pornography images of Camila, a child he sexually abused in 2005, and that he possessed these images on a Western Digital hard drive that the FBI seized from a residence he used in Halfmoon, New York, in 2018.
Raniere does not claim innocence
One of the most interesting points AUSA Hajjar makes is that while he claims the FBI tampered with evidence, Raniere does not claim he is innocent of abusing Camila when she was a child.
AUSA Hajjar wrote
“Raniere’s motion does not contend that Raniere is innocent of the child exploitation racketeering acts or that he did not take photographs of Camila constituting child pornography. Raniere does not appear to dispute that he was in a sexual relationship with Camila or that she was 15 when his sexual abuse began.”
Evidence of Raniere’s Guilt Besides Photos
AUSA Hajjar points out that the government presented “overwhelming” evidence of Raniere’s abuse of Camilal, even without the digital forensic evidence Raniere claims the FBI tampered with.
That overwhelming evidence includes:
- “Substantial evidence that Raniere began sexually abusing Camila in September 2005, two months before he took child pornography photographs of her, including messages referencing the beginning of their sexual relationship as September 2005.
- “Communications reflecting that Raniere took sexually explicit photographs of Camila when she was 15 years old, including Raniere’s statement to Camila that he “guard[ed] the other pictures” of her from “way back[.]”
- “The child pornography photographs themselves, which indicate a contemporaneous sexual relationship with Camila. ”
- “Daniela’s testimony that she had a conversation with Raniere about his sexual relationship with Camila, and that the conversation took place at some point prior to the Fall of 2006. [Daniela testified:] “I asked him if he was having sex with my sister [Camila]. He asked me if I minded.”)).”
- “The “Studies” folder in which the child pornography was recovered [in the hard drive] contained nude photographs of eleven other women with whom Raniere had a sexual relationship in 2005, including Lauren Salzman and Daniela. “
- “Lauren Salzman’s testimony that in approximately 2005, Raniere took what she described as “up-close crotch shot” photographs of her at 8 Hale Drive.
- “Daniela’s testimony that in 2005, Raniere approached her with a Canon camera and insisted on taking a naked photograph of her.”
The first item the FBI seized in Raniere’s library was a canon camera.AUSA Hajjar wrote:
The photographs depict Camila lying naked on a bed, and several photographs depict close-ups of Camila’s genitals. Camila’s photographs do not show an appendectomy scar, and other evidence admitted at trial reflected that Camila had a scar from appendix surgery in 2007.”
AUSA Hajjar wrote about the sub-folder in the hard drive named “Studies”, where the FBI found Camila’s photos along with 11 adult women known to Raniere.
Each sub-folder was titled with the initials of the woman (or her nickname) and a date. The collection of images were similar in content. Each folder contained images of a nude woman on a bed and close-up photographs of the woman’s public hair and vaginal area. Raniere does not appear to dispute that he had a sexual relationship in 2005 with each of the women depicted in the “Studies” folder.”
Raniere’s “Findings” are not newly discovered:
AUSA Hajjar argues that the alleged “findings” of a retired FBI agent [Kiper] cannot constitute “newly discovered evidence.”
Hiring a new expert two years after your conviction to review evidence that your trial counsel and previous expert had access to before and during your trial does not constitute “new discoveries.”
The Findings are Erroneous
But even if were newly discovered, [it is not] AUSA Hajjar argues,
“The ”expert’s’ ‘findings’ are misleading and erroneous, and misattribute characteristics of the electronic evidence…seized by law enforcement…to evidence tampering.” (See Exhibits D and C)
Raniere chose not to call His Own Expert
At trial, Raniere elected not to call a defense forensic expert—even though he had retained such an expert and the expert had been given access to all the electronic discovery Raniere requested, including contraband materials, at the office of the FBI’s Computer Analysis Response Team (“CART”).” (See Exhibit B)
He had ample time to cross-examine witnesses or present evidence:
To the extent Raniere wished to cross-examine the government’s witnesses or present evidence regarding the seizure or analysis of the forensic evidence in this case, he had the opportunity to do so at the time of trial.
AUSA Hajjar wrote:
“Raniere’s trial counsel did, in fact, cross-examine the CART forensic examiner at length regarding the digital evidence recovered in this case…” (See Exhibit B)
Raniere Never Argued the Child Pornography Evidence was Fake or Planted:
Hajjar raises an important point, that Raniere:
“…made no argument in summation or otherwise that the child pornography evidence had been fabricated, and Raniere makes no claim that his lawyers’ decision was anything other than a strategic choice.”
Raniere got a fair trial:
AUSA Hajjar, with a note of concern to the victims, adds:
“Raniere was entitled to a fair trial and he received one. Raniere’s victims, including Camila, should now have the opportunity to obtain some measure of closure from the finality of Raniere’s conviction and sentence.”
Exhibits Further Demolish Raniere’s Arguments
AUSA Hajjar now presents her exhibits, including the sworn declaration of Camila. Unlike Raniere, who does not deny he abused the girl, the now 32 year old Camila declares in no uncertain terms that he did – and under penalty of perjury.
Camila states the sexually explicit pictures used to convict Keith are authentic. She states she was 15 when Keith took the photos of her and she was in a sexual relationship with him at the time.
Exhibit B contains excerpts from a transcript of a pretrial status conference – about one month before the trial began – and an excerpt of Raniere’s attorney, Marc Agnifilo, cross-examining the FBI forensic examiner, Brian Booth.
Status Conference of April 4
Marc Agnifilo repeatedly and emphatically states to Judge Nicholas Garaufis that his defense team does not need additional time to review the photographic digital evidence (i.e., the hard drive and the camera card), he will be ready for trial and does not need a continuance, and the government has been entirely cooperative in providing his expert with access to the digital evidence.
Raniere and his team have made much of FA Booth’s testimony on direct examination that EXIF Data is hard to change. But they have been quiet about his cross-examination.
In his cross-examination, SA Booth testifies that, indeed, EXIF data can be changed. Pictures uploaded to Facebook are used as an example.
FBI Senior Computer Scientist David Loveal II, assigned to the Operational Technology Division of the FBI in Quantico, Virginia, provides a sworn statement contradicting Kiper’s findings.
Loveal states the prosecution tasked him to review Raniere’s expert Richard Kiper’s “Technical Findings” as appended to Keith’s Rule 33 motion, and the underlying evidence they analyzed (i.e., the camera card and the hard drive seized from Keith’s office) used to convict Keith.
FBI SA Loveal states
“The conclusions set forth in the Kiper Report are misleading or erroneous. The Kiper Report repeatedly ignores plausible explanations for observed phenomena in favor of allegations of tampering.”
Loveal then lays out his analysis and tests of the evidence and gives simple scientific explanations for each of the Findings/Allegations in Kiper’s 73-page report. He does so in 6 pages.
During the recorded conversations on April 6th and April 8th, 2020, which took place while Keith was at the Brooklyn Metropolitan Detention Center, Keith and his supporter, Suneel Chakravorty, discuss the anticipated completion time of Marc Agnifilo’s motion.
Keith seeks improvement to the expert report regarding tampering with the hard drive.
“This report isn’t granular enough,” says Keith.
These conversations prove Kiper’s work wasn’t based on anything “newly discovered” by him the following year. On that basis alone, Keith’s whole motion fails.
After reading Hajjar’s papers, it’s obvious that if Keith thought the evidence was planted or faked, he could and would have raised holy hell about it before and during his trial, and he had ample opportunity to do so. He had the best experts and the best legal team money could buy.
Judge Garaufis would have given him whatever time he needed, and his attorneys were repeatedly asked on the record if they needed more time to prepare Keith’s defense.
They said, “No!”
There are no grounds for this motion. Obviously, no one on Keith’s trial team thought the evidence was fabricated or tampered with before and during his trial. If they believed so, they could have and would have made hay about it then.
Thinking about Camila
Keith will lose, but as these things tend to go, the stink of some government conspiracy will likely linger for a long time.
I feel for Camila and what this must be like for her to endure. I also wonder about the psychology and conscience of Keith’s present team, who have access to all the same evidence and filings we all do.
Keith’s Warped Genius
I think Keith came up with the theories in the Rule 33 motion after Suneel Chakravarty told him that SA Brian Booth’s trial testimony that “EXIF data is hard to change” was suspicious.
That is Keith’s crazy genius.
He knows how to build something out of nothing by taking a kernel of plausibility (EXIF data is not that hard to change), getting a pliable sycophant desperate to feel superior to hire the right influencers no matter what the cost, and then creating a whole false reality around it all.
Little by little, dollar by dollar, over many months and years.
That is how Keith built NXIVM, and that’s how he eventually gets people like Alan Dershowitz to be on his team and support his bogus narrative now in the present.