The issue of whether the pictures are Camila or not is secondary. The ONLY ISSUE is whether the pictures are there authentically.
If Kiper is right, they were not.
I don't see where the Government establishes that the pictures weren't “planted” because they never address why the metadata doesn't match.
Let's assume the pictures are real. The Feds have them. They weren't on the hard drive, but some FBI Agent thinks “Raniere is a scumbag anyway. Let's make sure he goes away for a long time.”
The US Attorney's submission doesn't address the rogue FBI Agent theory that is presented from the digital evidence.
This means Raniere wins this point by DEFAULT. The US Attorney offered no rebuttal. Why?
Is Kiper's report true?
Maybe because the US Attorney knows the report is true and they can't ethically offer a rebuttal:
Rule 3.3: Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_3_candor_toward_the_tribunal/Where is Moira Penza when you need her? I don't think ethics rules would have stopped her from serving up Raniere for corporeal punishment. Who is Kiper, anyway?
But look at the rule. The US Attorney's “client” is the FBI. The US Attorney isn't offering any evidence of the FBI's actions. It is an “adversarial process,” and they are leaving the fact determination up to Judge Garaufis, who's already in the bag.
The US Attorney isn't addressing the truth on the main issue because they don't need to. Judge Garaufis has them covered.
“What is truth?” Ask Pontius Pilate.
Raniere should win based on Kiper's report because the US Attorney hasn't rebutted it. But he won't.
Judge Garufis will probably say he believes the Government's version of the facts. A version that they haven't defended here because the US Attorneys cannot ethically defend the FBI's illegal planting of evidence and violations of the chain of custody in the Federal Rules of Criminal Procedure.
Judge Garaufis will rely on a “legal fiction.” Here's how it will go:
Option #1 – Kiper's report is “unreliable.” Judge Garaufis does not find what a retired FBI special agent and forensic examiner says to merit consideration, even when unrebutted by the US Attorney. Garaufis does not ask the US Attorneys pointed questions about why Kiper's report raising serious chain of custody and due process issues should be discounted or dismissed entirely. This is called “the Judge Garaufis fix is in” option. Judge Garaufis does the “fact-finding” (or lack thereof) to cover up the FBI's brazen misconduct.
Option #2 – Judge Garaufis comes up with the legal fiction that even though he considered Kiper's report, it was not enough to disturb the factual findings of the jury. Even if what Kiper says is 100% true, Judge Garaufis will “reason” that it wouldn't have changed the jury's mind on guilt or innocence. And it wouldn't change his mind on sentencing. After all, the Camila pictures are real.
But this is the core of Raniere's claim. The Government can't cheat to secure a conviction, even if the planted evidence is real!
If a criminal trial is a search for truth, Nicholas Garufis will ask the mob. After all, “Vox Populi, Vox Dei.”
“Who would you have me release to you? Barabbas, or Raniere who is called Vanguard?”
“Barabbas! Barabbas!”
Is Raniere bad? Yes.
Is Raniere 120 years in jail bad? Probably not. Maybe he's only 12 or 15, or 20 years bad without the “planted” evidence. Should Judge Garaufis re-sentence?
He'll say he doesn't have to. Kiper can't be right. “Vox Populi, Vox Dei.”
“What shall we do with the Nazarean?”
“Crucify him!”
The mob has already spoken. The Vanguard has already been offered up to the altar of Jupiter.
Here is the central point, if Kiper is right:
With no chain of custody, we don't know what evidence was “planted” and what should have been excluded. Judge Garaufis will deny Raniere a new trial because, in his (biased) mind, the inclusion or exclusion of the evidence would not have made any difference to the result.
“Crucify him!”
But that's not the law.
“The sentencing process, as well as the trial itself, must satisfy the requirements of the due process clause.” Gardner v. Florida, 430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977).
Remember, if Kiper is right, the US Attorney knows the FBI was “dirty” here. There were “dirty” for the “right reasons.” But they can't rebut Kiper's report without breaking the law and the ethical rules. So, they just muddy the water with Camila.
But the US Attorney's client, the FBI, has already broken the law, and it seems the US Attorney's legal tactics are an admission of the FBI's transgressions.
Even for the US Attorney, Kiper is right.
So there WAS tampering.
Did the NY FBI Office SAC know? Did the prosecutors on the Raniere case know when it went to trial? Who knew what and when?
If Judge Garaufis had a spine, he could order a hearing to get to the bottom of this. But that's not Garaufis.
“Take a guard,” Pilate answered. “Go, make the [conviction] as secure as you know how.”
An Article III District Court could also order a complete and total VACATUR. The Judge could throw the case out, and Keith Raniere would walk out of USP-Tucson that day. It is what the Constitution commands:
“They rolled the stone away from the entrance to the SHU, and Vanguard was gone.”
But the Government cannot allow that: “You are to say, ‘[The Dead-Enders] came during the night and stole him away while we were asleep.’ If [Kiper's] report gets to [Judge Garaufis], we will satisfy him and keep you out of trouble, [Moira, the FBI, and the rest of them.]”
This constitutional remedy is within the bounds of reason, given this case's egregious and brazen Governmental misconduct, according to Kiper, one of their own. And unrebutted by the Government.
What if there was prosecutorial misconduct? What if Moira Penza and the other prosecutors knew the FBI planted the Camila pics when the drives were presented at trial?
An Article III District Court can use its supervisory powers to address misconduct arising from a trial or other proceeding in front of the court. Dismissal of an indictment is a remedy reserved for “truly extreme cases.” United States v. Artuso, 618 F.2d 192, 196 (2d Cir. 1980).
When seeking to dismiss an indictment due to prosecutorial misconduct in handling a particular case, a defendant must show either that the misconduct substantially prejudiced the defendant or that the misconduct was so extreme that the courts should take the drastic step of dismissing an otherwise valid indictment. See United States v. Lopez, 4 F.3d 1455, 1464 (9th Cir. 1993); United States v. Brown, 602 F.2d 1073, 1076-77 (2d Cir. 1979); United States v. Fields, 592 F.2d 638, 647 (2d Cir. 1978).
Here, the FBI and maybe the EDNY US Attorney’s Office have blatantly lied to the Court and committed multiple ongoing violations of the Rules of Professional Conduct, the Federal Rules of Criminal Procedure, and the Constitution. What is more extreme…if Kiper is right?
The “victims” here are not limited to Camila and the other NXIVM victims.
Here, an Article III District Court Judge and our entire Constitutional structure are the clear victims because – Judge Nicholas Garaufis was hoodwinked into getting sold a bill of goods by the Government, right?
If Kiper is right, the Government knowingly presented false and “manufactured” evidence, and a conviction was obtained on a U.S. citizen.
Judge Garaufis passed a sentence on Raniere based upon evidence that couldn't have properly found its way into sentencing without the FBI saying: “It's true, but…we didn't find it there, we planted it there. We helped the case along…like they should have done in OJ and countless others. We know who the bad dudes are…Barabbas!”
If Kiper is right…and Garaufis is a half-wit, the prejudice still remains in the public’s perception of the American Criminal Justice System. Through their misinformation, lies, and misconduct, the EDNY US Attorney’s Office made Judge Garaufis, an Article III Judge, an accomplice in the fraudulent imposition of Raniere's guilt and sentencing.
On the other hand, maybe Judge Nicholas Garaufis likes it that way. Maybe he likes the FBI “thinning the herd” for him. After all, these are “bad dudes.” Maybe he even has his own “Star Chamber,” where he decides who's the worst of the worst.
Well, maybe not him. Vox Populi, Vox Dei, after all.
But that's not the way the Constitution says it works in our republic. If the FBI and US Attorneys like it that way, they should be punished. If Pontius Garaufis won't punish them for their crimes, maybe he should be impeached.
Maybe Garaufis is an unwitting accomplice. But I ask you, is a half-wit in a penguin suit worse than a judge who brazenly ignores constitutional violations? Either way, he's on the federal bench. He's a Government Judge, but not one that defends the constitutional republic, the Bill of Rights, or his oath of office.
If Kiper is right…
What is the constitutional injury to the Article III Judiciary and its independence when Pontius Garaufis looks the other way when the FBI illegally plants evidence to stack the deck? Surely our Framers had the “show trial” of Jesus Christ in mind when the Fifth and Sixth Amendments were fashioned. After all, there is no more famous trial known to mankind.
The public perception is that when the Government’s lawyers violate the great trust placed in them by our constitutional structure and hoodwink the Federal Courts into an activity that is brazen, illegal, and erodes the foundations of law and order, there is no more Rule of Law. Modern proceedings are no different than the world's most famous Roman show trial.
What happens when Pontius Garaufis does nothing, and Kiper is right? Does that mean Trump is right too? Does that mean the Government is weaponized against its own people?
The US Attorneys are supposed to be the best and the brightest. Not always the smartest, not always the slickest, but always the hardest working and definitely the most honest:
“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935).
If Kiper is right, the Government weaponized against Keith Raniere.
Does Pontius Garaufis look the other way on the illegal weaponization of the FBI and the justice system? Because it's Keith Raniere? Because the evidence is “basically true.” Because he's a “bad dude.” Because he has to go away.
They did it to Raniere, who had Bronfman's billions behind him.
They are doing it to Trump, who has his own billions behind him.
Is Pontius Garaufis going to tell the FBI and the US Attorneys that it's all ok and give them his blessing? So that the next time they do it to me and you, the truth be damned?
Pontius Garaufis: “What is truth?”
The Canon camera was manufactured in 2004 – but the creation date of the pictures allegedly taken by this camera is 2003.
FBI Forensic Examiner Trainee Virginia Donnelly's photograph of the hard drive shows it was black, not silver.
Camera to Camera card to computer to hard drive.
A photo of a Lexar camera card similar to the one seized at the executive library of Keith Raniere.
This has got to be good. Lol.