Judge’s Order Denying Raniere Camera Card Suggests Rule 33 Will Be Denied in May

United States District Judge Nicholas G. Garaufis denied Keith Raniere’s motions to compel the US Department of Justice to turn over copies of the camera card the FBI seized from his library at 8 Hale Dr. on the day following his arrest in March 2018.

Judge Garaufis also set April 22, 2024 as the deadline for Raniere’s final Reply in support of his pending Rule 33 motion for a new trial.

Raniere requested copies of the camera card in support his Rule 33 motion which is based on his argument that the FBI fabricated evidence related to his conviction of racketeering acts of child pornography and child exploitation.

Under the criminal procedure rules, the DOJ was required to turn over the camera card copy before the 2019 trial. The Department never did, and Raniere’s attorneys failed to demand it.

Raniere’s Rule 33 motion is based on the findings of former FBI Forensic Examiner J. Richard Kiper whose report focuses mainly on various anomalies in the metadata in a hard drive that the FBI also seized from Raniere’s library where contraband images were belatedly found just before the trial.

The government rebutted Raniere’s Rule 33 motion through a report by FBI Forensic Examiner David Loveall refuting Kiper’s findings by giving alternative explanations other than FBI tampering for the anomalies in the metadata of the contraband photos.

Since his conviction, Raniere has filed three motions for a new trial under Rule 33 of the Federal Criminal Procedure which permits a new trial if significant discovery of new evidence that could not have been known before trial but would have likely affect the trial’s outcome trial is uncovered.

Judge Garaufis denied his first two Rule 33 motions.

The pending Rule 33 motion is his third and likely final chance at a new trial based on his claims that the FBI tampered with the evidence of child porn and his creation of it.

The judge in denying Raniere access to the camera card copies cited Loveall’s report, writing: “Mr. Loveall’s report, refuting Kiper’s key findings, offers a far more plausible and convincing explanation of any anomalies in the photos’ metadata.”

This sentence spells doom for Raniere’s Rule 33, since his motion is based on Kiper’s findings that anomalies in the metadata was caused by the FBI tampering with the files.

Why the Camera Card?

The camera card, of which Raniere requested copies, and the judge denied, was found inside a Canon camera seized in the library at 8 Hale. It did not contain the contraband photos. However it was used as evidence that Raniere took the photos of the Mexican girl Camila, when she was 15, since there were matching files of adult nudes on the camera card that matched those on the hard drive.

Kiper’s report goes into detail about his theory of how the metadata was altered to appear that the photos were taken in 2005, when Camila was 15.

Kiper argued that he could prove the matter more conclusively if he had access to the forensic copies of the camera card that the FBI made, as well as the corresponding FTK log files, a file listing of the hard drive that contained the images of child pornography and the FBI CART examination notes.

Looking Gloomy for Raniere

Raniere was convicted on June 19, 2019, on seven counts, including racketeering, racketeering conspiracy, wire fraud conspiracy, forced labor conspiracy, sex trafficking conspiracy, and sex trafficking. On October 27, 2020, Judge Garaufis sentenced him to 120 years in the Federal Bureau of Prisons custody.

In denying the release of the camera card, Judge Garaufis writes what can be clearly seen as a full preview of his upcoming ruling on Raniere’s Rule 33:

“Mr. Loveall’s report is further supported by the ample evidence presented at trial and Camila’s declaration that she is certain of the circumstances and timing of the photos. In sum, the evidence presented at trial, the Government’s expert report, and Camila’s declaration substantially outweigh the arguments raised in the Report and Mr. Raniere’s motion. Mr. Raniere therefore does not raise a reasonable probability that testing the evidence would demonstrate he did not commit the offense.”

Camila and Raniere

Raniere was head of the small insular NXIVM community headquartered in Albany, NY when Camila and her parents and siblings moved from Mexico to Albany in 2003.

Relying on the trust of the parents, Raniere began to manage Camila’s education and soon separated her from the parents and entered a sexual relationships with her, Camila says, in 2005, when she was 15.

At that time Raniere had an ongoing sexual relationship with her two elder sisters, Marianna and Daniela.

Though Camila did not appear at the trial, ample evidence was admitted that showed Raniere, who was 45 when Camila was 15 entered into a sexual relationship when she was underage.

In his recent denial of the camera card evidence Judge Garaufis recites the evidence:

1. messages from [Camila] where she referenced her sexual relationship with Raniere beginning in 2005 when she was fifteen years old;
2. communications from Mr. Raniere referencing the photos;
3. testimony from [Camila’s] sister [Daniela] that she was aware of the relationship prior to Fall 2006 [when Camila was still underage]
4. a folder [found on the hard drive] containing nude pictures of the other women with whom Mr. Raniere had a sexual relationship and in which the pictures of [Camila] were found;
5. testimony that Mr. Raniere sought to take similar pictures of other women;
6. [Camila’s] medical records, which included statements indicating she was in a sexual relationship with the same partner since she was underage;
7. testimony from [Daniela] identifying [Camila] as the person in a sanitized version of the [contraband] photos.

Raniere’s Rebuttal

Raniere’s legal team argues that he was not charged with having a sexual relationship with Camila but of possessing nude photos of her when she was under age which he also allegedly took.

In his motions, Raniere points out that someone altered the camera card while it was in FBI possession several months before the contraband photos were found on the hard drive.

This fact was brought up in trial, and an prosecution witness FBI Senior Examiner Brian Booth admitted that someone accessed the camera card improperly but that he did not know who did it.

The issue was not pursued by Raniere’s attorneys.

Legal Reason for Denial of Camera Card

The technical reason for the judge’s denial of the camera card, which Raniere had the right to obtain pretrial, falls on his trial counsel.

The judge wrote, “Mr. Raniere’s counsel had an opportunity to review and test the veracity of the photographic evidence prior to trial.” And he points out that the standard for a Rule 33 motion is it must be based on new evidence that “could not with due diligence have been discovered before or during trial.”

The copy camera card could have been discovered by making an application to the judge, compelling the DOJ to fulfill its obligations of handing over discovery before trial.

Deadlines and Future Predictions

The judge set the deadline that will almost certainly result in the end of his quest for a new trial based on FBI tampering. Raniere’s third Rule 33 motion has been outstanding since May 2022. The judge wrote that he will not grant an additional request for Raniere’s final Reply to the DOJ on his Rule 33 motion.

The deadline is April 22.

The only thing that remains uncertain is the possibility that Judge Garaufis will order an evidentiary hearing on the tampering.

My prediction is that sometime in May, without a hearing, Judge Garaufis will deny Raniere’s Rule 33 based on what he has written denying the camera card evidence.

Raniere will appeal, and the Second Circuit will deny his appeal, possibly before the end of the year. He will then appeal to the US Supreme Court, which will choose not to hear the matter, and his legal journey will officially end on his claim of FBI fabricated evidence.

Raniere may have other post-conviction options, such as ineffective assistance of counsel.

Summary

Raniere has been in custody since his arrest on March 26, 2018. He is 63 years old with about 95 years to serve. Much of the last two years Raniere has been in the Special Housing Unit at USP Tucson. Part of the reason he has had this extra punishment is undoubtedly related to his lawsuits against the BOP.

As long as Clare Bronfman continues to support him, he will no doubt pursue all legal remedies available to him no matter how remote or how exorbitant the cost.

They will all likely end the same as the Rule 33 is likely to end – with a denial and an incarcerated Raniere who, if he were wise, might accept his fate, stop suing the BOP, try to be a model inmate for once since he will be an inmate for the rest of his life.

In the interim, several lawyers will enjoy the largess and keep feeding him hope, but as it must be obvious now if Raniere is dining on hope he will die fasting.

Viva Executive Success.

Frank Parlato

Frank Parlato is an investigative journalist, media strategist, publisher, and legal consultant.

Frank Parlato

Frank Parlato is an investigative journalist, media strategist, publisher, and legal consultant.

See Full Bio