Keith Raniere, through his attorneys, Marc Agnifilo and Mark M. Baker, filed a Writ of Certiorari with the Supreme Court.
The odds are likely against the Court hearing Raniere’s case. The Supreme Court hears about 80 cases out of about 8,000 who petition the court.
Raniere wants the Supreme Court to review a 2nd Circuit decision entered on December 9, 2022, concerning District Court Judge Nicholas G. Garaufis’ decision to stop the cross-examination of Lauren Salzman, the Government’s sole testifying cooperating witness.
She pleaded guilty to Racketeering, NY State Extortion, and Forced Labor and testified to support the Government’s allegations on almost every element of every crime with which Raniere was charged.
She faced a prison term of 20 years, absent her cooperation.
The Government emphasized on direct examination that Lauren pleaded guilty to extortion and committed extortion at Raniere’s direction.
The cross-examination confronted Lauren with the conduct the Government claimed was extortionate and asked her to admit that she believed she and Raniere were helping the person at the time.
Here is the cross-examination leading up to the stopping of it.
Agnifilo
Q. Did you think it was extortion when you took the stuff [collateral]? Were you doing it to scare them?
AUSA Tanya Hajjar: Objection
The Court: You may answer.
A. I had concerns that it was problematic, and I chose to go with what Keith said. If I didn’t think it was problematic, I wouldn’t have raised it.
Q. Did you intend to hurt anyone, did you intend to scare anyone?
Ms. Hajjar: Objection
The Court: Sustained
***
Q. When you were in DOS, before anybody was arrested, were you doing things intentionally to break the law?
Ms. Hajjar: Objection
The Court: That requires a legal conclusion.
Q. What was your intention when you were in DOS?
The Court: You may answer.
A. [Lauren started to cry.] My intention was to prove to Keith that I was not so far below the ethical standard that he holds that I was – don’t even how far below I am. [She sobbed harder. She had a tissue in her hand and wiped tears from her face.] I was trying to prove my self-worth and salvage this string of hope of what I thought my relationship might someday be, and I put it above other people, helping them in their best interest. That’s what I did when I was in DOS. [Her voice was breaking. She was growing more emotional.]
The Court: Okay, that’s it. We are done
Mr. Agnifilo: Okay, Judge. Thank you.
The Court: You are done.
Mr. Agnifilo: I know. I am done.
The Court: No, I said you’re done
Mr. Agnifilo: I know. I am.
The Court: So you can sit down.
Following the jury’s discharge, the defense counsel addressed the court: “I don’t know why Your Honor cut off my cross-examination.”
The court: If you want to know, you went way over the line as far as I’m concerned with regard to this witness. You could have asked your questions and moved on to the next question, but you kept coming back, and I am not going to have someone have a nervous breakdown on the witness stand in front of – – excuse me, this is not DOS. This is not the allegations. This is a broken person, as far as I can tell, And whether she’s telling the truth, whether the jury believes her. I think it’s absolutely necessary that there be a certain level of consideration for someone’s condition.
And that’s really what this was. You had plenty of – if you have other things to say, you could have gone on and said them. But what I had here was, I had a crisis here. And not in my courtroom. I have to sentence this defendant, and what you did was, basically, ask her to make legal judgments about whether what she did in pleading guilty was farcical, that she took somebody else’s advice, some lawyer, so she could get out from under a trial. I thought that really went pretty far beyond the pale, frankly.
Mr. Agnifilo: Your Honor, I –
The Court: I took her guilty plea, sir. All right?
Mr. Agnifilo: I am not trying to argue with you. I am not trying to argue with you.
The Court: Then don’t argue with me.
Mr. Agnifilo: No –
The Court: You can take your appeal if you should not be successfully. I don’t want to talk about it anymore. I thought it was extremely excruciating. When I tried to cut off the line of questioning, you just went right back to the line of questioning. You could have gone on to something else. You could have. I may not get everything right up here, but I will tell you, as a human being, it was the right decision. Alright? And before I’m a judge, I’m a human being. And that goes for everybody in this room, and it includes you and the Government. And I am not going to allow someone to be placed in this circumstance and that let it continue. I am the one who is disappointed. I’m done…
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A few hours later, defense counsel filed a written application for a mistrial with the court. The court denied the motion.
Appeal to the Court of Appeals
Raniere appealed this and other issues with the US Court of Appeals for the 2nd Circuit. The appeal was rejected.
The 2nd Circuit ruled any arguable error was harmless.
Furthermore, the Government “offered to the defense to make any of its witnesses available” to testify at Raniere’s case-in-chief, “including Lauren Salzman,” but Raniere had not elected to avail himself of that opportunity and declined to put on a case.
Under these particular circumstances, we conclude Raniere “suffered no harm” from the District Court’s prior decision to cut off Lauren Salzman’s cross-examination….
Reasons for Allowance of the Writ
From the petition for a writ of certiorari to the Supreme Court:
The Government called only one cooperating witness: Lauren Salzman. Her testimony was central to the prosecution’s version of events, and it used her guilty plea to racketeering, racketeering conspiracy and extortion to directly impute that guilt to
Petitioner.
In addition to testifying to almost twenty years of her observations of Petitioner, including her lengthy intimate relationship with him, Salzman testified that she and he committed extortion and other crimes together in connection with women in DOS.
The single most important area of the cross-examination of Ms. Salzman was to show that, at the time, she and Petitioner had engaged in the conduct at issue, she genuinely believed she was helping, not harming, the person with whom they were
interacting.
The primary theme propounded by the defense, therefore, from opening statements through the examination of each witness and to the closing argument, was that, while highly unorthodox and
even offensive to some, Petitioner and others, including Salzman, genuinely believed they were helping people overcome various limitations that these people came to NXIVM to overcome.
Accordingly, the focus of the entire cross-examination of this
cooperating witness was to get her to admit that she was trying at all times to help people in their best interests.
As will be shown below, as soon as she testified to the jury that, in fact, she was motivated by “helping them in their best interest,” the trial judge shut down the cross….
The court’s after-the-fact justification for terminating the cross-examination of the Government’s only cooperating witness is plainly inconsistent with the record facts.
First, the court said to counsel, “you went over the line.” But the court overruled the Government’s objection as to this question and directed the witness to answer.
Second, the court suggested that it had stopped the cross-examination because the cooperating witness was having a “nervous breakdown on the witness stand.”
There was no prior instance, however, of the witness breaking down. Even so, this was no excuse, given the scope of this sacred Sixth Amendment right, to terminate the cross-examination of such a crucial prosecutorial witness.
The court’s actual reason for stopping the cross is readily manifest in the record. The court screamed at counsel, “excuse me, this is not DOS.” The court here stated that even though the cooperating witness was answering a question that the court had directed
her to answer, counsel’s questioning had made the legal proceedings akin to the allegations about DOS….
The Supreme Court has characterized the Sixth Amendment right to confrontation, embodied in the right to cross-examination, by repeatedly quoting Wigmore… as “the greatest legal engine ever invented for the discovery of truth.”…
Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested….
The cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness….
In this case, Lauren Salzman did, in fact, point “directly to the defendant in the courtroom itself.” Yet, as even assumed by the Court of Appeals to have been a constitutional error, the district court abruptly terminated the defense counsel’s cross-examination of that crucial prosecution witness who advanced the Government’s essential theory of coercion. The district court unabashedly did so because it wanted to spare her the obvious ordeal that attends a probing confrontation — undoubtedly, a rather inappropriate
role for the court to assume, certainly with respect to a major cooperating witness who was in a unique situation to recount.
It also wanted to safeguard her earlier plea from being reduced to a “farce.” But her examination needed to be pursued by defense counsel to probe the nature of her own conduct and whether she had pleaded guilty because she believed she was actually guilty of assisting in the alleged coercion or simply to minimize her custodial exposure.
Upon being told he was done and he should sit down, thereby completely dressing him down in the full presence of the jury — with the “serious damage” that such wrought upon his crucial credibility in the minds of the jurors — defense counsel promptly filed an unsuccessful written motion for a mistrial. So, in the end, not only was cross-examination unconstitutionally curtailed, but defense counsel was outed as a brute in the presence of the jury,
Contrary to the holding of the Court of Appeals, this Court should consider whether a prosecutorial offer of direct testimony — not the offer of continued cross-examination… can ever supplant the greatest legal engine ever invented for the discovery of truth that is cross-examination.
Rather, the Court should consider whether any sound justification exists for the district court’s premature and abrupt termination of counsel’s cross-examination.
[The Second Circuit’s claim was that the prosecution offered the defense to later call Salzman during its direct case. Raniere argued there are precedents that distinguish between direct and cross-examination. Additionally, Raniere had no obligation to put on any defense.]
Judge Garaufis approved the question over the prosecution’s objection, directing the witness to answer the question.
Before she completed her answer, the judge terminated the examination without explanation to the jury.
The judge then suggested defense counsel had done something inappropriate by “probing whether Salzman had truly intended harm…. the district court appeared far more concerned that the witness might answer defense counsel’s questions in a manner that contradicted her guilty plea given in its courtroom.
Curiously, it even seemed perplexed that defense counsel did not share that concern.
Quite to the contrary. Defense counsel had every right, indeed an obligation, to test the veracity of Salzman’s testimony, including an effort to show bias and motive, even if that would have undermined the colloquy at the cooperating witness’s plea. The district court simply had no discretion to curtail cross examination so as to prevent the jury from hearing facts bearing on the witness’s credibility….
When the district court impermissibly intervened in the fact-finding process during a central line of cross-examination, the prejudice suffered by the Petitioner was only exacerbated by the manner in which the district court handled the issue. For here,
the jury was left with the false impression that defense counsel had done something so improper as to justify the draconian sanction of forfeiting continued cross examination along with a tongue-lashing by the court.
The end result was that Salzman’s eminently challengeable credibility remained largely intact.
In reality, defense counsel was simply doing his job as the Sixth Amendment directs — cross-examining the sole cooperating witness in an attempt to discredit her. Whether that would have undermined what the witness had earlier sworn to upon pleading guilty, or whether it would have caused the witness anxiety, is simply not a defense attorney’s concern — which was solely to demonstrate prosecutorial overreaching in extracting Salzman’s plea.
The Supreme Court should consider whether a prosecutorial offer to make such witness available on the defense case could ever cure a Sixth Amendment deprivation.
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