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from The News And Times.
Tully wrote in an attachment to the motion, “When the tampering in this case is finally acknowledged in Court… the actions of any governmental actors subsequently proven to be involved, will need to be questioned and reexamined in all other cases in which they were allowed to work.”
Adriane T Schwartz Adriane T Schwartz
Keith Raniere appeared in a 2017 NXIVM YouTube video.
Attorneys and experts retained by convicted NXIVM “sex cult” leader Keith Raniere on Thursday alleged in a court filing and in a press conference that photographic evidence used to convict their client of child pornography and sexual exploitation charges was “significantly manipulated” by the government.
The assembled panel that alleged those claims in unison included Harvard Law School professors Ron Sullivan and Alan Dershowitz, California-based attorney Joseph Tully, former U.S. Attorney for the Eastern District of Arkansas Bud Cummins, former FBI Special Agent and Computer Forensic Examiner and Instructor Dr. J. Richard Kiper, and former FBI Senior Forensic Examiner Stacy Eldridge. Kiper and Eldridge are now private consultants.
Kiper asserted during the press conference that certain key evidence used against Raniere had been “significantly manipulated” — even “planted” — and that federal agents appear to have “extensively altered the media card used to justify the charges.”
Tully claimed the “level of government malfeasance is extreme” in Raniere’s case. He also asserted that his client was suffering from retaliation in prison, including solitary confinement.
Raniere was convicted of all charges in June 2019 in U.S. District Court for the Eastern District of New York. The counts against him included sex trafficking of children by force, fraud, or coercion; sex trafficking conspiracy; sex trafficking; attempted sex trafficking; racketeering conspiracy; forced labor conspiracy; involuntary servitude; wire fraud conspiracy; conspiracy to commit identity theft; sexual exploitation of a child; and possession of child pornography.
When Raniere, now 62, was sentenced to 120 years in prison, his attorneys asserted that he was not sorry for his actions and promised to someday clear his name.
Marc Agnifilo, Raniere’s trial attorney, had asserted that his client was simply misunderstood.
“You might find many things about him distasteful, but most of them aren’t part of the charges,” Agnifilo told the jury. “Disgusting lifestyles aren’t criminal.”
“Smallville” actress Allison Mack and Seagram’s heiress Clare Bronfman were among Raniere’s co-defendants. Both Mack, a key recruiter, and Bronfman, who helped bankroll NXIVM, entered guilty pleas.
A federal judge eventually ordered Raniere to pay roughly $3.46 million in restitution to 21 trafficking victims, including the costs of “past or future” surgeries that did or would remove tattoos or scars from women Raniere branded as his “slaves.”
The panel of attorneys and experts assembled on Thursday apparently sought to effectuate Raniere’s promise to clear his name.
A collection of attorneys and experts gathered for a press conference via Zoom on Thurs., Oct. 6, 2022, to allege government malfeasance in the prosecution of Keith Raniere. (Image via screengrab.)
Sullivan, who said he is representing Bronfman, said new evidence “suggests photo manipulation” by the government. He said the allegedly faked evidence — which he said was entered in the “11th hour” — was “so prejudicial” that it resulted in a guilty plea by his client that he now apparently wishes to challenge.
Kiper alleged that “the file access dates for files on one of the devices” seized by the government “were updated while in the custody of the FBI.” He argued that the dates suggest the evidence was altered. He also asserted that the FBI broke “chain of custody” rules for the storage and transmission of the evidence from person to person while it was in the government’s possession.
Dershowitz said that the team’s allegations were “very credible and serious” and implored the U.S. Department of Justice to live up to its mission to seek justice and not merely convictions. He stressed that he believed the proper route going forward was for the DOJ to at a minimum agree to an evidentiary hearing on the defense allegations. He suggested a new trial or a dismissal of Raniere’s indictment would also be prudent, in his opinion.
The press conference came on the heels of a 64-page filing before the Second Circuit Court of Appeals, where Raniere’s case is currently lodged. The motion, signed by Tully, asks the appellate court to pause its review of the case pending additional proceedings on the evidence matters the defense wishes to put into question.
“Mr. Raniere now moves this Court, by and through his counsel, to hold this appeal in abeyance to allow for the resolution of the two pending Rule 33 matters as there exists clear, substantive constitutional injuries uncovered by new evidence that may render appellate review unnecessary or at the very least will clarify the issues for this Court to resolve,” the Thursday morning motion reads.
The motion then points to “complex and technical newly discovered evidence finding manually altered digital evidence” in the underlying criminal prosecution. It calls the issues “significant and weighty” and alleges “the use of false testimony by the government to obtain a tainted conviction of Mr. Raniere.”
The filing also points to what it calls “newly discovered information that the government, in the eleventh hour of trial, swapped out one material FBI witness, whose testimony would have exculpated Mr. Raniere, with another material FBI witness, whose perjurious testimony wrongly inculpated Mr. Raniere” (emphases in the original).
“Damningly,” a declaration signed by Tully asserts, the first “examiner was reassigned to Ghana, Africa just days before he would have testified.”
An exhibit in support of the motion asserts that a hard drive and a camera memory card both exhibited “anomalies” when examined by defense experts.
The exhibit says the government used metadata to convince the jury that Raniere committed the racketeering acts of possession of child pornography and sexual exploitation of a child. At issue were “22 nude photos found on a backup hard drive” which depicted a female identified as “Camila” at trial.
“The government alleged that the photos were taken when Camila was fifteen,” the exhibit states. “However, by only visually looking at the photos, it was not self-evident that Camila was underage at the time the photos were taken, and Camila did not testify. Therefore, the government had to rely on digital evidence and argue two things: (1) that the 22 photos were taken when Camila was under 18, and (2) that the photos were taken by Keith Raniere.”
The argument continued as follows:
To show Camila was under the age of eighteen in the photos, the government used metadata, primarily the Exchangeable Image File Format, hereafter “EXIF,” Creation dates of the 22 alleged contraband photos. EXIF Creation dates are ‘birthdays’ of digital photos, assigned to them by the digital camera when the photos are taken. Other metadata involved were File System dates, such as “Creation,” “Modified,” and “Accessed.” In trial, the government argued that because EXIF data cannot be easily modified, and because the metadata and EXIF data for the 22 photos indicated that they were taken in 2005 when Camila would have been 15 years old, Camila was therefore underage in the photos.
The hard drive from which the photos were taken, according to the exhibit, was used to back up three computers, and the government disclosed it to the defense only in partial format and at a late hour in the proceedings. Other data on the drive linked it to Raniere, prosecutors alleged, according to the exhibit.
The defense said the chain was far too attenuated to truly link Raniere to the photos and that the dates were altered to wrongly allege that “Camila” was under age.
“[A]fter trial, three top digital forensic experts were hired to analyze evidence relevant to the digital photos,” the exhibit indicates. “All three experts, to their surprise and dismay, found a multitude of anomalies that evidenced that the alleged contraband photos were manufactured and planted.”
The document elucidates and further alleges the following (again, the emphases are in the original):
The digital evidence had clearly been manually altered to make the photos appear as if they were taken on the specific camera in 2005 before being automatically backed up to the hard drive in 2009. The folders where the alleged contraband photos were located were created manually but made to look as if they were automatically created by a computer backup program in 2005. In fact, all the digital anomalies that the experts found on the backup hard drive and the camera card were designed to support the government’s narrative, which it used to secure convictions for the racketeering acts of possessing child pornography and sexual exploitation of a minor. In the prosecution’s own words, these 22 photos were “the heart of our racketeering conspiracy.”
Because the allegedly altered evidence was a proverbial linchpin to the entire case, Raniere’s attorneys are hoping that the entire prosecution will fall apart if prosecutors or the courts agree with their interpretation of the evidence in question.
The exhibit ties together that theme by asserting that witness who was reassigned to Ghana had would have laid bare the issues with the government’s attempts to date the photos in question. The reassigned witness had previously testified in another case that “the FBI does not rely on metadata alone in determining a document’s date because metadata can be ‘manipulated,’” according to the pro-Raniere paperwork’s version of that testimony.
Tully’s declaration alleges that “the most probable reason behind” the investigator’s “reassignment” was “nefarious intent by government actors.”
Again, from the exhibit:
Such demonstrable and provable criminality in manufacturing, fabricating, and tampering with evidence by bad government actors, cannot be allowed to stand. The longer such manifest injustice is ignored, the greater the ripple effects will be in the long run, not only to our overall system of justice, but also within the daily operations of court dockets as these same bad government actors are no doubt currently involved in other cases.
When reached by Law&Crime, a spokesperson for the U.S. Attorney’s Office for the Eastern District of New York declined to comment on the accusations.
NXIVM, the group Raniere led, has long been described as an alleged “sex cult,” though the organization described itself as a “self-help” group.
The full motion and the exhibits are below:
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