Petition for Writ of Certiorari — Keith Raniere, Petitioner v. United States

Case No.:_______

In The

Supreme Court of the United States

O

KEITH RANIERE,

Petitioner,

against

UNITED STATES OF AMERICA,

Respondent.

______________________

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

MARC AGNIFILO

256 Fifth Avenue

New York, New York 10001

(212) 750-7800

marc@braflaw.com

MARK M. BAKER

Counsel of Record

4705 Henry Hudson Parkway

Bronx, New York 10471

(917) 740-3822

mark@mmbcriminalappeals.com

Attorneys for Petitioner

APPELLATE INNOVATIONS

(914) 948-2240

Printed on Recycled Paper

19077

i

QUESTION PRESENTED FOR REVIEW

Because it impacts upon the very structure of

the trial, should a finding of absolute harmlessness,

rather than harmlessness beyond a reasonable doubt,

be required where the Court committed an

intentional and egregious Sixth Amendment violation

by terminating defense counsel’s cross-examination of

the government’s sole cooperating witness in the

middle of an extended answer that the court

concluded would jeopardize the prosecution’s theory,

yet falsely suggesting to the jury that the

examination was being stopped due to some

impropriety of counsel, and should that be the rule,

notwithstanding a prosecutorial offer to make such

witness later available on the defense’s case-in-chief?

ii

PARTIES TO THE PROCEEDINGS

The parties in the Court of Appeals were the

United States of America, Appellee, and Keith Raniere

and Clare Bronfman, Appellants. Only Keith Raniere

is the Petitioner in this Court.

iii

RELATED PROCEEDINGS

Also decided by the United States Court of

Appeals for the Second Circuit was an unrelated issue

in a signed opinion, also dated December 9, 2022. See

United States v. Keith Raniere, et al, 55 F.4th 354 (2d

Cir. 2022), Docket Nos. 20-3520-cr (L); 20-3789-cr

(Con).

iv

TABLE OF CONTENTS

Page

Question Presented For Review ................................... i

Parties to the Proceedings ........................................... ii

Related Proceedings.................................................... iii

Table of Contents ........................................................ iv

Table of Authorities .................................................... vi

Petition for a Writ of Certiorari ...................................1

Opinions Below .............................................................1

Basis for Jurisdiction ....................................................1

Constitutional Provisions Involved ..............................1

Statement of the Case ..................................................2

A. The Indictment and Theory of the

Prosecution........................................................2

B. The Trial ...........................................................2

1. ESP, NXIVM and DOS............................2

2. The Importance Of The Cooperating

Witness Lauren Salzman ........................5

3. The District Court’s Abrupt Termination

of Cooperating Witness Lauren

Salzman’s Cross Examination ................6

4. The Application for a Mistrial ..............11

C. The Appeal to the Court of Appeals ...............16

Reasons for Allowance of the Writ .............................18

A. The Right to Confrontation ............................18

B. The Doctrine of Harmless Error ....................22

v

C. Where the District Court Inappropriately

Terminates a Defense Counsel’s Crossexamination of the Sole Cooperating Witness,

Whose Testimony Goes to the Very Heart of

the Charges, the Supreme Court Should

Consider Whether Any Finding of Harmless

Error by a Reviewing Court Should Be

Predicated on a Determination of Absolute

Harmlessness Rather Than Beyond a

Reasonable Doubt ...........................................23

Conclusion ...................................................................30

APPENDIX

Appendix A – Summary Order of the United States

Court of Appeals for the Second Circuit, dated

December 9, 2022 ...................................................... A-1

Appendix B – Judgment of the United States

District Court for the Eastern District of

New York, dated October 30, 2020........................... B-1

Appendix C – Mistrial Application,

dated May 23, 2019 ................................................... C-1

vi

TABLE OF AUTHORITIES

Cases:

Page

Arizona v. Fulminante,

499 U.S. 279, 111 S.Ct. 1246,

113 L.Ed.2d 302 (1991) .........................................22

Berger v. California,

393 U.S. 314, 89 S.Ct. 540,

21 L.Ed.2d 508 (1969) ...........................................21

Bruton v. United States,

391 U.S. 123, 88 S.Ct. 1620,

20 L.Ed.2d 476 (1968) .....................................21, 24

California v. Green,

399 U.S. 149, 158, 90 S. Ct. 1930,

26 L. Ed. 2d 489 (1970) .........................................18

Chambers v. Mississippi,

410 U.S. 284, 93 S. Ct. 1038,

35 L. Ed. 2d 297 (1973) .........................................21

Chapman v. California,

386 U.S. 18, 87 S.Ct. 824,

17 L.Ed.2d 705 (1967) ...........................................22

Davis v. Alaska,

415 U.S. 308, 94 S. Ct. 1105,

39 L. Ed. 2d 347 (1974) ................. 18, 20, 21, 22, 23

Deck v. Missouri,

544 U.S. 622, 125 S.Ct. 2007,

161 L.Ed.2d 953 (2005) .........................................22

vii

Delaware v. Van Arsdall,

475 U.S. 673, 106 S.Ct. 1431,

89 L.Ed.2d 674 (1986) ..................................... 21-22

Douglas v. Alabama,

380 U.S. 415, 85 S.Ct. 1074,

13 L.Ed.2d 934 (1965) ...........................................19

Dutton v. Evans,

400 U.S. 74, 91 S.Ct. 210,

27 L.Ed.2d 213 (1970) ...........................................21

Ford v. Wainwright,

477 U.S. 399, 106 S. Ct. 2595,

91 L. Ed. 2d 335 (1986) .........................................18

Gamache v. California,

562 U.S. 1083, 131 S. Ct. 591,

178 L.Ed. 2d 514 (2010) ........................................22

Goldberg v. Kelly,

397 U.S. 254, 90 S.Ct. 1011,

25 L.Ed.2d 287 (1970) ...........................................11

Gordon v. United States,

344 U.S. 414, 73 S.Ct. 369,

97 L.Ed. 447 (1953)..........................................13, 28

Gray v. Maryland,

523 U.S. 185, 118 S. Ct. 1151,

140 L.Ed. 2d 294 (1998) ........................................24

Greene v. McElroy,

360 U.S. 474, 79 S.Ct. 1400,

3 L.Ed.2d 1377 (1959) ...........................................20

viii

Kaley v. United States,

571 U.S. 320, 134 S. Ct. 1090,

188 L.Ed.2d 46 (2014) ...........................................29

Kentucky v. Stincer,

482 U.S. 730, 107 S. Ct. 2658,

96 L. Ed. 2d 631 (1987) .........................................18

Lee v. Illinois,

476 U.S. 530, 106 S. Ct. 2056,

90 L. Ed. 2d 514 (1986) .........................................28

Lilly v. Virginia,

527 U.S. 116, 119 S. Ct. 1887,

144 L. Ed. 2d 117 (1999) .................................18, 25

Mancusi v. Stubbs,

408 U.S. 204, 92 S.Ct. 2308,

33 L.Ed.2d 293 (1972) ...........................................21

Maryland v. Craig,

497 U.S. 836, 846, 110 S. Ct. 3157,

111 L. Ed. 2d 666 (1990) .......................................18

Olden v. Kentucky,

488 U.S. 227, 109 S. Ct. 480,

102 L. Ed. 2d 513 (1988) .................................21, 22

Perry v. Leeke,

488 U.S. 272, 109 S. Ct. 594,

102 L. Ed. 2d 624 (1989) .......................................18

Pointer v. Texas,

380 U.S. 400, 85 S.Ct. 1065,

13 L.Ed.2d 923 (1965) .....................................19, 21

ix

United States v. Dominguez Benitez,

542 U.S. 74, 124 S.Ct. 2333,

159 L.Ed.2d 157 (2004) .........................................22

Virginia v. Black,

538 U.S. 343, 123 S. Ct. 1536,

155 L. Ed. 2d 535 (2003) .......................................26

Watkins v. Sowders,

449 U.S. 341, 101 S. Ct. 654,

66 L. Ed. 2d 549, (1981) ........................................18

Weaver v. Massachusetts,

198 L. Ed. 2d 420,

137 S. Ct. 1899 (2017) ...........................................24

White v. Illinois,

502 U.S. 346, 112 S. Ct. 736,

116 L. Ed. 2d 848 (1992) .......................................18

Other Federal Cases:

United States v. Barbarino,

612 F. App'x 624 (2d Cir. 2015).......................17, 26

United States v. Carlock,

806 F.2d 535 (5th Cir.1986), cert. denied,

480 U.S. 949, 107 S.Ct. 1611,

94 L.Ed.2d 796 (1987) ...........................................26

United States v. Lowenberg,

853 F.2d 295 (5th Cir. 1988) .................................26

United States v. Lynn,

856 F.2d 430 (1st Cir. 1988) ..................................12

x

United States v. Pedroza,

750 F.2d 187 (2d Cir. 1984) ...................................27

United States v. Raniere, et al,

55 F.4th 354 (2d Cir. 2022) ................................... iii

United States v. Segal,

534 F.2d 578 (3d Cir.1976) ....................................27

State Cases:

People v. Rosenberg,

45 N.Y.2d 251, 380 N.E.2d 199 (1978)..................26

Federal Statutes:

28 U.S.C. § 1257(a) .......................................................1

Federal Rules of Evidence:

Fed. R. Evid. 607 .........................................................27

United States Supreme Court Rules:

Rule 10(a) ......................................................................1

Rule 13 ..........................................................................1

United States Constitution:

Amendment VI ..............................................................1

xi

Miscellaneous:

3A Wigmore, Evidence § 940, p. 775

(Chadbourn rev. 1970)...........................................20

5 Wigmore, Evidence § 1367, at 32

(Chadbourn rev 1974)............................................18

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Keith Raniere seeks a writ of

certiorari to review a judgment of the United States

Court of Appeals for the Second Circuit.

Opinions Below

The judgment and opinion of Court of Appeals

(Appendix A) was entered on December 9, 2022,

affirming a judgment of the United States District

Court for the Eastern District of New York (Garaufis,

J.) (Appendix B), rendered October 7, 2020, convicting

Petitioner, following a jury trial, of racketeering, sex

trafficking and a forced labor conspiracy.

Basis for Jurisdiction

Jurisdiction to entertain this petition for a writ

of certiorari lies pursuant to 28 U.S.C. § 1257(a) and

Rules 10(a) and 13 of the Rules of the Supreme Court.

The basis for jurisdiction in the United States District

Court for the Eastern District of New York was the

filing of an indictment.

Constitutional Provisions Involved

United States Constitution, Amendment VI,

provides in pertinent part:

In all criminal prosecutions, the accused shall

enjoy the right...to be confronted with the witnesses

against him.

2

Statement of the Case

A.

The Indictment and Theory of the

Prosecution

The government alleged that Petitioner was the

founder of NXIVM, an executive counseling

organization, and that he ran a subsidiary and

confidential organization named DOS, an acronym for

“Dominus Obsequious Sororium” (said to mean

“Lord/Master of the Obedient Female Companions”).

DOS was made up of female NXIVM members whom

Petitioner was alleged to have subjected to coerced

sexual relationships, to the exclusion of any other male

partners.

The Government further alleged that Petitioner

directed certain female NXIVM members (“masters”)

to recruit women to DOS (“slaves”), which he headed as

the sole male. Recruited women were required to

proffer “collateral” to DOS, thereby demonstrating

their allegiance both to him and the organization.

Collateral usually consisted of photographs wherein

the “slaves,” inter alia, would be featured in various

stages of undress and sexually compromised situations.

B.

The Trial

1.

ESP, NXIVM and DOS

Insofar as relevant to the limited issue raised in

this petition, and as culled from Petitioner’s Brief as

Appellant in the Court of Appeals, in 1998, Petitioner

and Nancy Salzman created a “human potential” school

known as Executive Success Programs (“ESP”) (1514). 1

ESP was designed to help participants achieve their

1 Numerical references are to the transcript of trial.

3

individualized goals and consisted of workshops

designed to “actualize human potential. ”Salzman was

the CEO of the company, and Petitioner was its

philosophical leader (467; 549-550).

In the early 2000s, the legal entity NXIVM,

headquartered in Latham, New York, was established

which served as an umbrella organization for ESP and

many other programs that were developed by

Petitioner and Salzman (468-478). A community

ultimately developed in the area known as Clifton

Park, comprised of NXIVM devotees who were

committed to Petitioner’s and NXIVM’s teachings (567571; 575). NXIVM also opened centers in other parts of

the country as well as in Canada and Mexico (552;

555).

Petitioner was involved in simultaneous sexual

relationships with numerous female members of

NXIVM, including Lauren Salzman, Nancy’s daughter.

Lauren’s relationship with Petitioner began in 2001

and she frequently participated in consensual sexual

activities with Petitioner and his other partners (15381539). Some of the other women, including two sisters,

discussed with one another their respective

relationships with the Petitioner and their desire to be

with him romantically. They agreed it could prove

problematic, but they ultimately continued having

simultaneous sexual relations with him (2398-2399).

In late 2015, along with a number of women,

including Allison Mack, Petitioner created a secret

society known as “DOS” or “The Vow” (1619). Although

a number of DOS members came from the larger

NXIVM community, involvement in NXIVM was not a

prerequisite to membership, and DOS and NXIVM

4

were unrelated (211; 1783; 3847). In fact, Petitioner

expressed a preference for enrolling people into DOS

who were not part of the NXIVM community (1620).

DOS was a women’s sorority built on a “master”

and “slave” hierarchy, with the Petitioner positioned at

the top of the structure as the “Grandmaster” (1594).

Immediately below Petitioner were his “slaves,”

consisting of a number of women, including -- but not

limited to -- Allison Mack and Lauren Salzman. These

women were also considered “masters,” because they

recruited their own slaves into the group (1601).

Petitioner had a sexual relationship with most, but not

all, of the first-line masters (1595; 1601). Salzman

personally recruited a total of six slaves into DOS, and

testified as a cooperating witness that membership in

DOS required complete secrecy (1601-02).

There was an enrollment process whereby the

prospective slaves would be asked to provide collateral,

which consisted of highly sensitive information, true or

untrue, that was sufficiently valuable to ensure the

recruit’s commitment to the secrecy of the group (1602;

1621). Once the collateral was provided, the

prospective slave would learn that members made a

lifetime vow of obedience as part of DOS; that it was

premised on a master-slave dynamic; and that they

would eventually be asked to be branded as symbolic of

their membership in DOS (1603; 1621).

If the recruit decided to move forward with

membership, she was expected to collateralize all areas

of her life by providing her master with rights to

material possessions and more damaging information.

According to Lauren Salzman, the sole cooperating

witness, the purpose of the collateral was to create fear

5

among the “slaves” that it would be forfeited or

released as a measure of preventing them from

breaking their vow by leaving DOS or from disclosing

its existence (1603; 1621). First-line “masters” were

prohibited from revealing that Petitioner was the

“Grandmaster” or that the brand they would be

expected to get consisted of the Petitioner’s initials

(1602-03; 1621).

There were a number of practices associated

with DOS, including checking in with one’s master in

the morning and before going to bed a night (16031604). In addition to other requisite routines (1604),

DOS “slaves” were also expected to do “acts of care” for

their respective masters, consisting of such

undertakings as running errands, picking up groceries,

or generally helping to make the master’s life easier

(1615). The concept of “acts of care” was familiar to the

NXIVM community, because it put great value on the

notion of learning to care for somebody just for the

sake of caring (1615).

2.

The Importance Of The Cooperating

Witness Lauren Salzman

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-

6

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.

3.

The

District

Court’s

Abrupt

Termination of Cooperating Witness

Lauren Salzman’s Cross Examination

Cooperating co-defendant, Lauren Salzman,

pleaded guilty to racketeering and conspiracy to

commit racketeering before testifying against

Petitioner pursuant to a cooperation agreement with

the government (2005-2007). Salzman told the jury

that she faced up to 20 years in prison for her role in

the charged offenses and the alleged enterprise. She

testified that, in exchange for her truthful testimony

against Petitioner, the government would inform the

sentencing judge of such cooperation, but that it would

7

not recommend a specific sentence (2008).

During

defense

counsel’s

vital

crossexamination of Salzman, defense counsel began a line

of questioning designed to show that Salzman was

testifying against Petitioner for reasons unrelated to

her or his guilt. The following exchange took place

when the district court -- after directing the witness to

respond -- suddenly sought to protect her from what it

viewed as her highly stressful appearance, by abruptly

directing counsel to effectively cease his inquiry:

Q. Did you think it was extortion when you

took the stuff? Were you doing it to scare

them?

Ms. 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

conclusion.

a

legal

Q. What was your intention when you were in

8

DOS?

The Court: You may answer.

A. 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. I was trying to prove my self

worth, and salvage this string of hope of

what I thought my relationship might some

day be, and I put it above other people,

helping them in their best interest. That’s

what I did when I was in DOS.

The Court: Okay, that 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.

2264-2265.

Significantly, the witness was in the middle of

answering a question which the court had directed her

to answer because the court considered it appropriate.

The government indicated it had no redirect and the

witness was excused.

Thereafter, following the discharge of the jury

for the day, defense counsel immediately addressed the

court, stating: “I don’t know why Your Honor cut off my

cross-examination.” The court responded:

If you want to know, you went way over

9

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.

10

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

2267-2270; emphasis added.

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

11

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 which the court had directed

her to answer, counsel’s questioning had made the

legal proceedings akin to the allegations about DOS.

4.

The Application for a Mistrial

A few hours later, defense counsel filed with the

court a written application for a mistrial. Appendix C.

Counsel initially maintained that

[t]he Court’s actions strike at the heart of

a fair trial. Indeed, “[i]n almost every

setting where important decisions turn on

questions of fact, due process requires an

opportunity to confront and crossexamine adverse witnesses.” Goldberg v.

Kelly, 397 U.S. 254 (1970). The jury must

pass on the credibility of this critical

cooperating witness. Central to that

consideration is whether the witness

genuinely believed that she was harming

people, as opposed to helping people,

through her actions in DOS. The jury is

absolutely within its right to conclude

that a cooperating witness pleaded guilty

for reasons other than, or in addition to,

her actual guilt. This is especially true

where, as here, the government touts the

cooperating witness’ guilty plea as being

truthful and consistent with the

government’s view that Raniere is guilty

12

of the same crimes. The defense is under

no obligation to merely accept this view of

the facts. Indeed, defense counsel is well

within his rights and legal obligation to

shake the government’s position on these

issues, to show that perhaps the witness

is not guilty of certain crimes and that

the witness has pleaded guilty and

cooperated against the defendant for

personal reasons or for reasons unrelated

to her actual guilt. See United States v.

Lynn, 856 F.2d 430, 432 (1st Cir. 1988)

(because bias is always relevant as

discrediting the witness and affecting the

weight of the witness’ testimony, a

defendant is entitled to explore a witness’

motivation for testifying).

Moreover, the Court should not have

saved the cooperating witness from

herself or her own answers, in violation of

Raniere’s Sixth Amendment right. ***

Appendix C, at p. 3.

Counsel then elaborated:

This is a critical cooperating witness. The

government—who undoubtedly views her

as a co-conspirator and not a victim—

solicited and finalized her cooperation.

The government then chose to put this

witness on the witness stand in a very

serious case where the possibility of life in

prison is in the balance. If this witness is

indeed “damaged,” that is not the fault of

the defendant who is, after all, seeking to

13

demonstrate her lack of credibility. The

jury must be able to see this witness for

whatever

she

is—good,

bad

or

indifferent—without the Court saving her

by stopping her mid-testimony and

ordering the defendant to ask her no

more questions. This deprived Raniere

the ability to confront Ms. Salzman

effectively and elicit evidence which was

favorable to his defense. See Gordon v.

United States, 344 U.S. 414, 423 (1953)

(trial judge’s discretion “cannot be

expanded to justify a curtailment which

keeps from the jury relevant and

important facts bearing on the

trustworthiness of crucial testimony.”)

Our view and the view we were trying to

share with the jury was that Ms.

Salzman’s difficulty with answering these

questions was due to the fact that

because she truly believed DOS was a

positive influence on her and others (prior

to seeing the discovery and undergoing

the change in perspective to which she

admitted) she was struggling to identify

how exactly she broke the law given her

outlook at the time she engaged in these

actions.

While her actions may or may not take on

a different dimension in hindsight, her

actions at the time were not intended to

be hurtful. By stopping this examination

and preventing wholesale the defendant’s

ability to develop this theme -- which was

14

at the core of the defendant’s opening

statement and was developed through

other witness’ at this trial -- the Court

impermissibly intervened into the facts,

prevented the development of a central

line of cross-examination and then

scolded counsel sternly in front of the

jury, all in the interest of minimizing the

emotional upset of a cooperating witness.

While the Court’s concern for the

cooperating witness as a person is

admirable in the abstract, the Court could

have done many things short of

announcing the end of cross-examination

sternly and without warning. The Court

could have, for instance, given the

witness a break or adjourned for the day.

But the Court opted to cause the jury to

believe unfairly that defense counsel had

done something wrong to a witness in a

case with highly sensitive issues and to

fully

terminate

a

critical

crossexamination without any notice or

warning whatsoever.

Id., at p. 4.

Counsel then concluded by noting:

Due to the Court stopping the crossexamination, counsel was not permitted

to question the witness about several

areas

covered

during

her

direct

examination. This includes (1) the impact of

her potential jail term on her decision to

cooperate, (2) certain other facts she

15

learned in discovery that caused her to

view Raniere and DOS differently than

she had previously, (3) certain specific

portions of the tape recordings she heard of

meetings between Raniere and other DOS

members, and (4) other aspects of her plea

agreement and her cooperation. As a

result, the jury is left with only the

prosecution’s version of these topics, which

have not been covered in crossexamination.

Finally, for the Court to chastise counsel

by repeatedly directing him to end his

cross examination and to sit down, where

the Court had specifically ruled that the

witness could answer the question is

patently unfair. Counsel has been fair and

appropriate to every witness called by the

government and whatever good will

counsel has endeavored to engender in the

minds of the jury is now forever lost.

There is no coming back from this. The

damage is done. The witness’ crossexamination has been ended. Counsel has

been dressed down in front of the jury.

There is no remedy.

We move for a mistrial.

Id., at p.5.

Without asking the government to respond, and

without hearing any argument on the clear issue of

overwhelming constitutional significance, the court

only stated that the motion was denied. It offered no

reason, no legal analysis and no opinion in any form.

16

C.

The Appeal to the Court of Appeals

On appeal, in addition to challenging the abrupt

curtailment of his counsel’s cross-examination of

Lauren Salzman, Petitioner raised several issues,

including the insufficiency of the evidence of the

several counts, Rule 403 challenges, and other rulings

of the district court. Appendix B. With respect to the

claimed improper termination of Salzman’s crossexamination, Petitioner maintained that “[t]he district

court’s abrupt termination of defense counsel’s crossexamination of Salzman before the jury interfered with

[his] right to a fair trial and his right to confront the

government witness, including on the subject matter of

whether Salzman pled guilty because she was actually

guilty.”

The Court of Appeals rejected this argument. In

so doing, though agreeing with the Government that

the district court’s actions amounted to harmless error,

the Court essentially assumed that the abrupt

curtailment of Salzman’s cross-examinations had

indeed been improper in the first instance. As the

Court explained:

Here, any arguable error was harmless.

Raniere vaguely asserts that he was

precluded from crossing Lauren Salzman

on a range of topics, including: (1) the

impact of her potential jail term on her

decision to cooperate; (2) “certain other

facts” she learned in discovery that caused

her to change her view of Raniere and

DOS; (3) “certain specific portions” of

recordings she heard of meetings between

Raniere and other DOS members; and (4)

17

“other aspects” of her plea agreement and

her cooperation. Raniere's Br. 81. But

Raniere fails to provide any further detail

about these potential questions or explain

how the inability to address them—after

an already lengthy cross-examination that

included many questions on related

topics—deprived him of his ability to test

the veracity of Lauren Salzman's

testimony. See, e.g., United States v.

Stewart, 433 F.3d 273, 313 (2d Cir. 2006).

Furthermore, after the District Court

terminated counsel's cross-examination of

Lauren Salzman and at the close of the

Government' s case- in- chief, the

Government

stated—and

Raniere's

counsel confirmed—that the Government

had “offered to the defense to make any of

its witnesses available” to testify at

Raniere's case-in-chief, “including Lauren

Salzman,” and that Raniere had not

elected to avail himself of that opportunity

and declined to put on a case. Gov. App'x

976.

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. Cf. United

States v. Barbarino, 612 F. App'x 624, 627

(2d

Cir.

2015)

(summary

order)

(concluding that any error in limiting

defendant's cross examination of a witness

was harmless where “[t]he Government

offered to make [the witness] available for

18

further cross-examination by telephone”

and “Barbarino has not identified other

questions

he

was prevented from

asking on cross-examination”).

Appendix A, at pp.10-11

Reasons for Allowance of the Writ

A.

The Right to Confrontation

Certainly for the last half century, since at least

its reference thereto in California v. Green, 399 U.S.

149, 158, 90 S. Ct. 1930, 1935, 26 L. Ed. 2d 489 (1970),

the Supreme Court has characterized the Sixth

Amendment right to confrontation, embodied in the

right to cross-examination, by repeatedly quoting 5

Wigmore, Evidence § 1367, at 32 (Chadbourn rev

1974), as “the greatest legal engine ever invented for

the discovery of truth.” See e.g., Lilly v. Virginia, 527

U.S. 116, 123, 119 S. Ct. 1887, 1894, 144 L. Ed. 2d 117

(1999); White v. Illinois, 502 U.S. 346, 356, 112 S. Ct.

736, 743, 116 L. Ed. 2d 848 (1992); Maryland v.

Craig, 497 U.S. 836, 846, 110 S. Ct. 3157, 3163, 111

L. Ed. 2d 666 (1990); Perry v. Leeke, 488 U.S. 272,

283, 109 S. Ct. 594, 601, 102 L. Ed. 2d 624, n.7 (1989);

Kentucky v. Stincer, 482 U.S. 730, 736, 107 S. Ct.

2658, 2662, 96 L. Ed. 2d 631 (1987); Ford v.

Wainwright, 477 U.S. 399, 415, 106 S. Ct. 2595, 2604,

91 L. Ed. 2d 335 (1986); Lee v. Illinois, 476 U.S. 530,

540, 106 S. Ct. 2056, 2062, 90 L. Ed. 2d 514 (1986);

and Watkins v. Sowders, 449 U.S. 341, 349, 101 S. Ct.

654, 659, 66 L. Ed. 2d 549, n.4 (1981).

In Davis v. Alaska, 415 U.S. 308, 315–16, 94 S.

Ct. 1105, 1110, 39 L. Ed. 2d 347 (1974), explicating

upon the Sixth Amendment right to confrontation, this

19

Court further noted that

[t]his right is secured for defendants in

state as well as federal criminal

proceedings.... Confrontation means more

than being allowed to confront the witness

physically. “Our cases construing the

(confrontation) clause hold that a primary

interest secured by it is the right of crossexamination.”

415 U.S. 308, 315–16 (citing Pointer v. Texas, 380

U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) and

quoting Douglas v. Alabama, 380 U.S. 415, 418, 85

S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965)).

The time-honored breadth of this sacred trial

right, and the various means by which it is effectuated,

was chiseled into sharp relief:

Cross-examination is the principal means

by which the believability of a witness and

the truth of his testimony are tested.

Subject always to the broad discretion of a

trial judge to preclude repetitive and

unduly harassing interrogation, the crossexaminer is not only permitted to delve

into the witness' story to test the witness'

perceptions and memory, but the crossexaminer has traditionally been allowed to

impeach, i.e., discredit, the witness. One

way of discrediting the witness is to

introduce evidence of a prior criminal

conviction of that witness. By so doing the

cross-examiner intends to afford the jury a

basis to infer that the witness' character is

such that he would be less likely than the

20

average trustworthy citizen to be truthful

in his testimony. The introduction of

evidence of a prior crime is thus a general

attack on the credibility of the witness. A

more particular attack on the witness'

credibility is effected by means of crossexamination directed toward revealing

possible biases, prejudices, or ulterior

motives of the witness as they may relate

directly to issues or personalities in the

case at hand. The partiality of a witness is

subject to exploration at trial, and is

‘always relevant as discrediting the

witness and affecting the weight of his

testimony.’ We have recognized that the

exposure of a witness' motivation in

testifying is a proper and important

function of the constitutionally protected

right of cross-examination.

Davis v. Alaska, 415 U.S. at 316–17 (footnote omitted)

(quoting 3A J. Wigmore, Evidence § 940, p. 775

(Chadbourn rev. 1970) and citing Greene v. McElroy,

360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377

(1959).

Accordingly,

[t]he right of cross-examination is more

than a desirable rule of trial procedure. It is

implicit in the constitutional right of

confrontation, and helps assure the

“accuracy

of

the

truth-determining

process.” It is, indeed, “an essential and

fundamental requirement for the kind of

fair trial which is this country's

21

constitutional goal.” Of course, the right to

confront and to cross-examine is not

absolute and may, in appropriate cases,

bow to accommodate other legitimate

interests in the criminal trial process. But

its denial or significant diminution calls

into question the ultimate “integrity of the

fact-finding process” and requires that the

competing interest be closely examined.

Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct.

1038, 1046, 35 L. Ed. 2d 297 (1973) (quoting Dutton v.

Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed.2d

213 (1970) and Pointer v. Texas, supra, 380 U.S. at

405, 85 S.Ct. at 1068, 13 L.Ed.2d 923 (1965); and citing

Bruton v. United States, 391 U.S. 123, 135—137, 88

S.Ct. 1620, 20 L.Ed.2d 476 (1968); Mancusi v. Stubbs,

408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972);

and Berger v. California, 393 U.S. 314, 315, 89 S.Ct.

540, 541, 21 L.Ed.2d 508 (1969)

In the final analysis, therefore, the Court has

reaffirmed Davis v. Alaska, thereby holding that

“a criminal defendant states a violation of

the Confrontation Clause by showing that

he was prohibited from engaging in

otherwise appropriate cross-examination

designed to show a prototypical form of

bias on the part of the witness, and

thereby ‘to expose to the jury the facts

from which jurors ... could appropriately

draw inferences relating to the reliability of

the witness.’ ”

Olden v. Kentucky, 488 U.S. 227, 231, 109 S. Ct. 480,

483, 102 L. Ed. 2d 513 (1988) (quoting Delaware v.

22

Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d

674 (1986) quoting Davis, supra, 415 U.S., at 318, 94

S.Ct., at 1111). To be sure, the Court noted that in

“Van Arsdall, supra, it was also held that “the

constitutionally improper denial of a defendant's

opportunity to impeach a witness for bias, like other

Confrontation Clause errors, is subject to Chapman v.

California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705

(1967) harmless-error analysis.” 475 U.S., at 684, 106

S.Ct., at 1438; Olden, 488 U.S. at 232, 109 S. Ct. 480,

483, 102 L. Ed. 2d 513 (1988).

B.

The Doctrine of Harmless Error

In Chapman, involving a Fifth Amendment

violations the Court, noting that all states and the

federal government sanction some degree of harmless

error analysis, addressed and rejected the argument

that “all federal constitutional errors, regardless of the

facts and circumstances, must always be deemed

harmful.” the Court held, however, that “before a

federal constitutional error can be held harmless, the

court must be able to declare a belief that it was

harmless beyond a reasonable doubt.” 386 U.S. 18, at

24. That burden of course falls upon the prosecution.

See e.g. Deck v. Missouri, 544 U.S. 622, 635, 125 S.Ct.

2007, 161 L.Ed.2d 953 (2005); United States v.

Dominguez Benitez, 542 U.S. 74, 81, n. 7, 124 S.Ct.

2333, 159 L.Ed.2d 157 (2004); and Arizona v.

Fulminante, 499 U.S. 279, 295–296, 111 S.Ct. 1246,

113 L.Ed.2d 302 (1991) (referenced by Justice

Sotomayor, concurring in the denial of certiorari in

Gamache v. California, 562 U.S. 1083, 131 S. Ct. 591,

592, 178 L. Ed. 2d 514 (2010)).

23

In Van Arsdall the Respondent suggested that

the Court, in Davis v. Alaska, had “foreclose[d]” the

“application of harmless-error analysis to the

particular sort of Confrontation Clause violation

involved in the Respondent’s case, quoting from Davis,

wherein it was stated that “[Davis] was thus denied

the right of effective cross-examination which would

be constitutional error of the first magnitude and no

amount of showing of want of prejudice would cure it.”

475 U.S. 673, 682–83, 106 S. Ct. 1431, 1437, 89 L. Ed.

2d 674 (1986). Rejecting that assertion, the Court

advised that “Davis does not support an automatic

reversal rule, and the above-quoted language merely

reflects the view that on the facts of that case the trial

court's error had done ‘serious damage’ to the

petitioner's defense. Id.

C.

Where the District Court Inappropriately

Terminates a Defense Counsel’s Crossexamination of the Sole Cooperating

Witness, Whose Testimony Goes to the Very

Heart of the Charges, the Supreme Court

Should Consider Whether Any Finding of

Harmless Error by a Reviewing Court

Should Be Predicated on a Determination

of Absolute Harmlessness Rather Than

Beyond a Reasonable Doubt

Undoubtedly, the Supreme Court has certainly

been clear that harmless error must be found in the

face of a confrontation violation if a reversal of a

judgment of conviction is to be avoided. It is submitted

however, that, in an instance where “serious damage”

results because the cross-examination of the

government’s sole cooperating witness was improperly

halted, a reviewing Court should be required to

24

consider whether the burden on the government must

be a demonstration that the harmlessness of the error

was beyond any doubt, amounting to an absoluteness

of the lack of any such doubt. And this is certainly so

where the trial court so rules in an admitted effort to

protect the challenged witness from judicially

perceived anxiety or from possibly discrediting her

arlier guilty plea allocution. 2

In Gray v. Maryland, 523 U.S. 185, 194, 118 S.

Ct. 1151, 1156, 140 L. Ed. 2d 294 (1998), this Court

recalled that its decision in Bruton v. United States,

391 U.S. 123, 136, 88 S. Ct. 1620, 1628, 20 L. Ed. 2d

476 (1968) held that the “powerfully incriminating”

effect of what Justice Stewart called “an out-of-court

accusation,” 391 U.S., at 138, 88 S.Ct., at 1629

(concurring opinion), creates “a special, and vital, need

for cross-examination—a need that would be

immediately obvious had the codefendant pointed

2 Otherwise stated, it is submitted that such an error impacts

upon the very structure of the trial. And as recalled in Weaver v.

Massachusetts, 198 L. Ed. 2d 420, 137 S. Ct. 1899, 1907–08

(2017) (citations and internal quotation marks omitted),

The purpose of the structural error doctrine is to

ensure insistence on certain basic, constitutional

guarantees that should define the framework of

any criminal trial. Thus, the defining feature of a

structural error is that it affect[s] the framework

within which the trial proceeds, rather than

being simply an error in the trial process itself.

For the same reason, a structural error def[ies]

analysis by harmless error standards. (internal

quotation marks omitted).

25

directly to the defendant in the courtroom itself.”

Emphasis added. See also Lilly v. Virginia, supra, 527

U.S. at 128, 119 S. Ct. at 1896, 144 L. Ed. 2d 117.

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

constitutional error, the district court abruptly

terminated 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

26

offer of direct testimony -- not the offer of continued

cross-examination as found in Barbarino, supra -- can

ever supplant the greatest legal engine ever invented

for the discovery of truth that is cross-examination. 3

Rather, the Court should consider whether any sound

justification exists for the district court’s premature

and abrupt termination of counsel’s cross examination

3 Compare Barbarino, 612 F. App'x at 627 (“The Government

offered to make Dr. Moore available for further crossexamination by telephone, and Barbarino has not offered any

reason why this compromise would not have been adequate.”), to

United States v. Lowenberg, 853 F.2d 295, 300 (5th Cir. 1988)

(“Federal Rule of Evidence 611 makes clear that a trial judge is

not required to permit cross-examination that exceeds the scope

of the direct examination. Moreover, the defense was permitted

to elicit all the evidence it sought through this witness in the

presentation of its own case. The fact that this examination was

conducted on the same day minimized any alleged prejudice

concerning the separation of time between the government's

examination of Hagerty and Lowenberg's. Furthermore,

Lowenberg's attorney did not object or complain about this

alleged “temporal bias” until after the government rested, when

he moved for a mistrial. Under these circumstances, the trial

court clearly did not err” (citing United States v. Carlock, 806

F.2d 535, 553 (5th Cir.1986), cert. denied, 480 U.S. 949, 107

S.Ct. 1611, 94 L.Ed.2d 796 (1987)). Here, the defense’s decision

whether to present a direct case was a long way off, if at all, and

the mistrial application was filed immediately. And of course,

Petitioner had no obligation to put on any defense. Virginia v.

Black, 538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003).

The Second Circuit’s reliance on that offer, therefore, requires

the sacrifice of one right (to cross-examine a crucial witness) to

compel the sacrifice of another (not to present any defense at

all), a constitutional conundrum if there ever was one . To

borrow from the New York Court of Appeals, such a mandated

sacrifice “would be to allow error compounded to become error

invincible.” People v. Rosenberg, 45 N.Y.2d 251, 257, 380 N.E.2d

199, 202 (1978). In any event, such a remedy would give the

witness an undue opportunity to prepare for difficult questions

now known to come.

27

of the government’s key and sole cooperating witness

with a view toward determining whether, in such a

situation, the requisite level of harmlessness needs to

be aggravated.

Fed. R. Evid. 607, notwithstanding, the Second

Circuit’s claim that an offer to the defense to later call

Salzman during its direct case might well be seen by

this Court as flouting the Court of Appeal’s own

precedents distinguishing between direct and crossexamination. See e.g. United States v. Pedroza, 750

F.2d 187, 196 (2d Cir. 1984) (“The principal

opportunity for defendants to elicit facts as to Carlos's

consent occurred on the cross-examination of Carlos,

after the government had asked him on direct

examination if he had any involvement in Luis's

kidnaping. ‘[I]f a matter has been raised on direct

examination, generally cross-examination must be

permitted,’ and we see no basis for a deviation from

this general principle in the present case.”) (quoting

United States v. Segal, 534 F.2d 578, 582 (3d

Cir.1976)).

Here, defense counsel’s line of questioning was

necessary and decidedly appropriate. In fact, the

district court had first directed the witness to answer

the question posed by counsel over the government’s

objection immediately prior to abruptly terminating

the examination absent explanation to the jury. Yet,

the district court later suggested that defense counsel

had done something inappropriate by probing whether

Salzman had truly intended harm in connection her

conduct underlying the charges to which she had

pleaded guilty. In so doing, the district court appeared

far more concerned that the witness might answer

defense counsel’s questions in a manner that

28

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 crossexamination so as to prevent the jury from hearing

facts bearing on the witness’s credibility. See Gordon

v. United States, supra, 344 U.S.at 423 (trial judge’s

discretion “cannot be expanded to justify a curtailment

which keeps from the jury relevant and important facts

bearing on the trustworthiness crucial testimony”).

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

29

solely to demonstrate prosecutorial overreaching in

extracting Salzman’s plea. As the Chief Justice has

opined in a separate though parallel context:

Federal prosecutors, when they rise in

court, represent the people of the United

States. But so do defense lawyers -- one at

a time. In my view, the Court's opinion

pays

insufficient

respect

to

the

importance of an independent bar as a

check on prosecutorial abuse and

government overreaching.

Kaley v. United States, 571 U.S. 320, 134 S. Ct. 1090,

1114-15, 188 L.Ed.2d 46 (2014) (Roberts, C.J.,

dissenting)

*

*

*

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. And, if so, it should determine whether

any level of harmlessness thereupon found, when the

witness involved is the government’s sole cooperator,

needs to be absolute. In short, the Court should not

countenance the trial court committing an intentional

and egregious violation of a sacrosanct Sixth

Amendment right expecting and hoping to be saved

by the doctrine of harmless error.

30

Conclusion

The Petition for a Writ of Certiorari

Should Be Granted

Dated: Bronx, New York

March 6, 2023

Respectfully submitted,

MARK M. BAKER

Counsel of Record

4705 Henry Hudson Parkway

Bronx, New York 10471

(917) 740-3822

Mark@mmbcriminalappeals.com

MARC AGNIFILO

256 Fifth Avenue

New York, New York 10001

(212) 750-7800

Marc@braflaw.com

Attorneys for Petitioner