Pontius Garaufis: Rome Hath Spoken!

Why Keith Raniere Can't and Won't Win His Rule 33 Motion Despite Solid Evidence of Government Misconduct

Aug 07, 2023

By Richard Luthmann

NOTE: NXIVM and Keith Raniere are not my regular “beat.” If you are interested in the story, the authority in the issue is Frank Parlato and the Frank Report. However, I do know many of the players involved. I was at the Brooklyn MDC with Keith Raniere. We had the same crooked prosecutrix, Moira Kim Penza. I practiced law in the EDNY court and know Judge Garaufis and how he operates. I know “process animals” at the Federal Bureau of Prisons (BOP). And I have experienced FBI misconduct firsthand. When I see an NXIVM issue where a larger point can be made (often legal journalism-related), I sometimes choose to opine, like the following piece. Again, Parlato is your guy if you want the nuts and bolts on NXIVM based on years of solid investigative journalism.

The Backstory

NXIVM cult leader Keith Rainere has a pending Rule 33 motion with the US Federal Court in Brooklyn, where he was found guilty and sentenced to 120 years in prison by EDNY Judge Nicholas Garaufis in October 2020.

Raniere is effectively serving a life sentence.

Under Rule 33 of the Federal Rules of Criminal Procedure, Raniere can get a new trial: “[T]he court may vacate any judgment and grant a new trial if the interest of justice so requires.”

Raniere argues, through his lawyer Joseph Tully, accused the FBI of tampering with the evidence “to gain a dishonest advantage at trial.”

Specifically at issue is whether digital evidence of child pornography was planted on a camera card and digital hard drive by FBI Agents after the hard drive was seized from Raniere’s townhouse in Half Moon, New York, during a warrant execution conducted on March 27, 2018.

There is no dispute that these photos are child pornography. Camila is the woman identified as Jane Doe 2 in the Second Superseding Indictment in U.S.A. v. Raniere. She is a Mexican national, and she swears Raniere took pictures of her in 2005 when she was 15 years old.

The issue in the Rule 33 motion is not about child pornography. It is about the chain of custody and whether FBI Agents went rogue.

The theory advanced by Raniere is that FBI Agents stacked the deck against him by planting the child pornography digital evidence. Even though this evidence may be “real,” planting it on a hard drive and camera card is a huge no-no. It is a felony crime of tampering with evidence and violates several guarantees afforded to the criminally accused under the Bill of Rights.

If the planting wasn’t bad enough (mere possession of child pornography is a crime), the way the kiddie porn pics were planted on the camera card was intended to make it look like Raniere took the pictures, opening him up to “production” charges.

And maybe he did take and produce the pictures. Camila says it was Raniere. But we will never know for sure from that digital evidence because it was tampered with. That is the crux of Raniere’s argument.

If Raniere gets his way, he must be afforded a new trial. If he can show any significant problems with the chain of custody, the courts will usually grant a new trial. The scrutiny is heightened the higher the stakes, so even minor errors in a death penalty case, for example, could be a basis for a new trial and the exclusion of offending evidence.

Raniere’s case is a death sentence.

Attorney Tully wants at least a new trial but would like to see Raniere’s case entirely thrown out. “[D]ismissal is both warranted and the most appropriate remedy here…. Mr. Raniere is entitled to a dismissal, a new trial, or a hearing to further explore these allegations.”

The more outlandish the Government’s misconduct and violations, the less outlandish the drastic remedy of a complete and total vacatur of the conviction becomes.

If the FBI and the US Attorneys cheated, Keith Raniere could walk free.

What Does Raniere Say Happened?

Raniere says FBI Special Agent Christopher Mills is a liar. SA Mills testified the FBI followed protocol. Raniere calls bullshit. His papers claim AUSA Tanya Hajjar elicited “false testimony” from Mills.

Raniere’s theory is a “stack the deck” narrative. There’s no dispute that FBI Special Agents Rees and Lever checked the camera card out of evidence control twice. But they were not authorized to access the device. Under proper FBI Protocol, a Computer Analysis and Response Team (CART) examiner must first examine the device. The CART examiner then makes a “clone” of the device for the Special Agents to tear apart.

Raniere claims the FBI didn’t protect the original device in evidence control in his case. SA Lever violated FBI “critical procedure.” For example, “date accessed” information was overwritten. This means that none of the dates on the original device are trustworthy within the chain of custody. The FBI cannot say with any certainty that the device taken from Raniere’s townhouse has the same digital contents as the device thereafter “cloned,” disclosed to defense counsel in multiple parts and then presented in the courtroom at Raniere’s trial.

So the FBI fucked up, in plain English. They broke the chain of custody. But there is a thing as a “harmless error.” It’s a legal fiction in law that allows a Judge to call a legal “5-second rule.” You may have dropped the cookie. But it’s not that dirty. You can still eat it.

What gives Raniere’s argument “legs” is that the FBI didn’t call the “5-second rule.” They didn’t admit they were slightly wrong and leave it to AUSA Moira Kim Penza and company to clean up their mess. One of Moira’s favorite courtroom words is “overwhelming” - the evidence against Mr. Raniere is overwhelming, the testimony we have heard is overwhelming, Mr. Raniere’s guilty is overwhelming. The only thing we know for sure is that overwhelming isn’t her “safe word.”

Let the lawyers argue that the evidence is still OK. Even if the lawyers can’t convince the judge to keep it in, the Government has an “overwhelming” case against Raniere, right?

Instead, it looks like Special Agent Mills and Senior Forensic Examiner Brian Booth both committed perjury. Booth claimed he didn’t know who improperly examined the camera card. But his notes tell a different story. They show Booth knew about the broken chain of custody.

Raniere’s papers say, “Booth lied that the breaks in the chains of custody and his ignorance of who held the evidence before he ran his unnecessary FTK report were not important or outside of protocol.”

“Agent Mills lied that protocol was followed,” the papers say, and “SFE Booth lied about the reliability of the tampered EXIF data… Thus, dismissal is both warranted and the most appropriate remedy.”

The Rule 33 motion includes reports from three digital forensic experts. They detail how they believe the FBI tampered with evidence. The most important is from Dr. J. Richard Kiper, who had a 20-year career as an FBI Special Agent from 1999 to 2019. Over half of Kiper’s career was in cybersecurity and digital forensics.

The Government attempts and fails to counter Dr. Kiper’s findings with FBI Senior Computer Scientist David Loveall II. Loveall’s claims are weak. They use the buzzwords “misleading and erroneous” when referring to Dr. Kiper’s report. But neither Loveall’s report nor anything else appended to the Government’s Response to Raniere’s Rule 33 Motion unequivocally states 1) that the FBI did not violate protocol, or 2) that the FBI did not tamper with/plant evidence.

Who Cares If The FEDS Stacked the Deck To Put a CHOMO Away?

That is the primary argument the Government puts forward in its response to Keith Raniere’s Rule 33 motion.

The “big reveal” is a declaration by Camila that Raniere did, in fact, take nude pictures of her in 2005 when she was 16. The images are child pornography, making Raniere a CHOMO (prison slang for child molester).

However, the entire Camila issue is a red herring. The issue of whether the pictures are underage nudes of Camila or not is secondary. The ONLY ISSUE is whether the photographs are there authentically.

If Dr. 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. Loveall whistles past the graveyard on this point in his report.

Let’s assume the pictures are real. Camila says they are. The Feds have them in 2019. 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 presented from the digital evidence.

This means Raniere wins this point by DEFAULT. The US Attorney offered no rebuttal. Why?

Is Dr. Kiper’s report accurate?

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.

This is a fundamental change in Government tactics - abiding by ethical rules. Where is Moira Kim Penza when you need her? I don’t think “ethics rules” have stopped her from serving up corporeal punishment, Keith Raniere, or anyone else. Who is Kiper, anyway, compared to #MeTooMoira?

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 leave the fact determination up to Judge Garaufis.

The US Attorney isn’t addressing the truth on the main issue because they don’t need to. Judge Garaufis has them covered. He’s already in the bag.

Pontius Garaufis

"What is truth?" Ask Pontius Pilate.

Raniere should win based on Dr. Kiper’s report because the US Attorney hasn’t rebutted it. Loveall’s report is weak. It gives no real specifics to overcome the rogue agent theory. After all, Raniere is looking at a “death sentence” of 120 years. Even the most minor irregularities should be enough to warrant a new trial. The Government’s claims that the proof is “overwhelming” should only be helpful to Raniere. If the remaining evidence is overwhelming, then the Government isn’t prejudiced in obtaining a guilty conviction at a new trial.

But Raniere won’t win.

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. A version contradicted by the physical evidence, including the reports and notes of the Special Agents and Senior Forensic Examiner.

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’s expert, Loveall. 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 jury’s factual findings. 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!

“I find no basis for a charge against him…Do you want me to release ‘the king of the Jews’? JOHN 18: 38-39

The Bill of Rights was drafted and sent to the states for ratification after the First Session of the First Congress: March 4, 1789 – September 29, 1789.

President George Washington supported James Madison’s plan to secure a Bill of Rights. Influenced heavily by the Magna Carta, an ancient pact safeguarding individual liberty, the Bill of Rights was intended as a symbol of the natural rights of man against an oppressive or unjust government.

The framers all knew the Roman Governor delivered Jesus Christ to death, even though the procedure was apparently oppressive and unjust. Pontious Pilate admitted as much, “I find no basis for a charge against him.”

The Bill of Rights was intended to ensure the Government of the United States would not run amok. In America, the Bill of Rights ensures that, unlike in Roman times, no one is crucified based on the whims of the mob. That is the constitutional role of the Article III federal judge.

How Judge Nicholas Garaufis rules on the upcoming Raniere Rule 33 motion will be a litmus test of whether he is true to his constitutional oath or has succumbed to the mob like Pontius Pilate.

If a criminal trial is a search for truth, Nicholas Garufis will ask the mob. After all, “Vox Populi, Vox Dei”:

“The jury has already spoken. Why upset the jury verdict with the natural law and fundamental rights the Bill of Rights compels me to uphold?”
“Who would you have me release to you? Barabbas, or Raniere, who is called Vanguard?”
"Barabbas! Barabbas!"

No one has told Pontius Garaufis that the jury’s verdict should hold little weight in the face of the misconduct incident to Keith Raniere’s death sentence.

“And those people should not be listened to who keep saying the voice of the people is the voice of God since the riotousness of the crowd is always close to insanity.” - Alcuin of York, Letter to the Emperor Charlemagne, 800 A.D.

Raniere Was Sent to Death By the Mob and Pontius Garaufis; Don’t Expect Much

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. Remember, all the NXIVM co-defendants stood firm until the kiddie porn evidence came along on the eve of trial. Then they all cut deals.

Should Judge Garaufis re-sentence?

He’ll say he doesn’t have to. Dr. 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 Dr. 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).

If Dr. Kiper is right, the US Attorney knows the FBI was “dirty” here. They were “dirty” for the “right reasons.” But they can’t refute Dr. Kiper’s report without breaking the law and the ethical rules. So, they resort to muddying 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, Dr. Kiper is right.

So There WAS Tampering. What Now?

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? What did Moria and Tanya know and do (or fail to do)?

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 [Dr. Kiper's] report gets to [Judge Garaufis], we will satisfy him and keep you out of trouble, [Moira, Tanja, 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 Dr. Kiper, one of their own. And unrebutted by the Government with any sworn statements of their own.

Is Dismissal Appropriate?

What if there was prosecutorial misconduct? What if Moira Kim Penza, Tanya Hajjar, 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 Dr. 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 Dr. Kiper is right, the Government knowingly presented false and “manufactured” evidence, and a conviction was obtained on a U.S. citizen.

Judge Garaufis passed sentence on Raniere based upon evidence that couldn’t have appropriately 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, the Government, know who the bad dudes are...Barabbas!"

If Dr. Kiper is right...and Garaufis is a half-wit, the prejudice 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. Perhaps he wants 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.

FBI and Prosecutorial Misconduct With Impunity and Without Consequences?

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. Matt Gaetz, Marjorie Taylor Greene, and others would happily put the name “Pontius Garaufis” on an “Impeachment Watchlist.”

It could be Garaufis is an unwitting accomplice. But I ask you, is a half-wit in a penguin suit worse than a judge who brazenly ignores the Government’s 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 Dr. Kiper is right...

Constitutional Injury to the Republic

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 Fourth, 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 in this mode are no different than the world’s most famous Roman show trial.

What happens when Pontius Garaufis does nothing, and Dr. Kiper is right? Does that mean Donald J. Trump is right too? Does that mean the Government is “weaponized” against its own people, and the Article III Courts are aloof, impotent, or complicit?

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 Dr. 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 - Rome has spoken.

They did it to Keith Allen Raniere, who had Bronfman’s billions behind him.

They are doing it to Donald John 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?

We need not ask Pontius Garaufis: “What is truth?” His decision on Keith Raniere’s Rule 33 motion will tell us everything we need to know.