Judge Cabranes Quickly Denied Motion to Stay the Appeal.
What could this mean?
On Friday, October 7, Second Circuit appellate judge Jose Cabranes denied Keith Raniere’s motion to stay his appeal the day after it was filed. He did not give a reason.
Keith asked the court to stay his appeal, based on new evidence that in the tail end of trial, the government swapped out an FBI expert witness Stephen Flatley whose testimony would have been exculpatory, for an FBI expert witness, Brian Booth, whose testimony was contradictory to Flatley’s .
Keith asked that the appeal be held in abeyance so that the pending Rule 33 on FBI evidence tampering and perjury could be heard.
The evidence at issue in the Rule 33 motion are the alleged contraband photos, which then-Assistant US Attorney Moira Kim Penza stated to the court on March 18, 2019 were the “heart” of their racketeering conspiracy case.
Six forensics experts, including three top former FBI forensic examiners, have independently concluded that this evidence was extensively manipulated, and some of it must have been done while in FBI custody. AUSA Kevin Trowel again wrote that the tampering issue is “frivolous.”
If Judge Nicholas G. Garaufis were to decide in favor of the Rule 33, that tampering occurred, all charges could be vacated, or even dismissed with prejudice due to government criminal conduct.
It has been five months since oral arguments for the appeal. Since both appellants (Keith Raniere and Clare Bronfman) are incarcerated, one would think that the appeals court would not wait years to make a decision. Perhaps the reason for the denial of the stay is that a decision on the appeal is imminent.
If the Second Circuit denies the appeal, then jurisdiction returns to Garaufis and he has to decide on the Rule 33 and a motion to recuse based on his alleged biased conduct.
If the Second Circuit grants the appeal, then the Rule 33 has no standing. There could be a new trial, at the DOJ’s discretion.
