American court hearing recordings and interviews - Season 4. Episode 2. January 24, 2023. United States v. Raniere, argument of counsel to court of appeals following criminal conviction of Keith Raniere #nxivm

Episode Date: March 12, 2023

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begin with Keith Radier against USA. We have a short argument that the motion is counted. Thank you. Good afternoon to the court, counsel, court staff. Thank you for having me. I'm honored to be here. The only request that I am asking of this court is to issue an advisory mandamus opinion to clarify the proper sequencing of rulings on petitions for recusal. This is a simple matter of law. This court should instruct the trial court under Barnes v. Harding, Harling, 368 F-Sup 3D, 573, Pimpoint Site, 591, as noted on page 19 in my brief. You say you're asking for an advisory mandamus ruling? What's an advisory mandamus rule?

It is where this court instructs the lower court. on an opinion of law. So what I'm asking here is that this court instruct the lower court to, pursuant to Barnes v. Harling, that the recusal issue is a threshold issue that must be resolved before the court may consider any substantive motion. This is not only common sense, this is not only logical, but it ensures fairness.

And it protects the integrity of our entire judicial system. To allow a court who has a pending recusal motion to rule on other substantive issues is illogical. It births injustice, and it defeats the entire purpose behind 28 U.S.C. 445, our statute on recusals for judicial bias. In doing so, it dimin— Is this the only time that you've asked for the recusal of Judge Garifeth? Yes. It is. Yeah, I filed a recusal in the lower court. It's now pending. There's also a pending Rule 33 motion. And the concern is right now there's a dearth of guidance on this issue as to which motion the judge should hear first.

Well, go ahead and just tell us something very briefly about the chronology here. At what stage in the proceeding does this recusal motion come? The recusal was filed while there was an appeal pending before this court. This court has ruled on the appeal? There was no earlier recusal motion. Not by me. No, I came in on this case. No, no. I'm speaking now of you as the counsel for Reneer.

So has Reneer filed any recusal motions before this one? No, this is the first motion. So it's made while the appeal is pending. Yes. On the theory that there are further proceedings that will take place in the Eastern District? Yes, so the Rule 33 was filed while the appeal was pending. And then since there would be another issue pending before the district court, I also filed a recusal motion. I'm sorry, could you just repeat when you said that there is such a thing as an advisory.

Yes. Mandamus petition. I'm a little confused by that because I thought that mandamus is only available when a district court has clearly exceeded the bounds of what's obviously its duties, but if you're suggesting that we should clarify something that has never been clear, and by definition we're not in the world of mandamus, I'm instructed by Schlegenhof Beholder, which is a United States Supreme Court opinion. 379 U.S. 104, pinpoint site 1110, where they consider the use of advisory writs.

And then this... Advisory mandamus or other writs? Advisory rits, yes. But not mandamus? Yes, correct. Correct that it's not about mandamus. Well, I believe that it's in part a mandamus and that you would be instructing the appellate court. I'm going to ask you what the Supreme Court's holding.

about? Is it about a mandamus or not about a mandatory? Advisory writ. I appreciate the correction. That's a pretty important correction. Yes, it is. However, the second circuit has dealt with this before. Inri, Zyprexa products liability litigation. 594 F3-113, pinpoint site 125. Advisory writs are appropriate where their guidance is of sufficient importance and there's a dearth of guidance on the issue. Could you give us the full for that please without omitting any words? The quote I have is it is appropriate for us to discuss the merits of a challenged district court action to deny

mandamus when the question is of sufficient importance. Yes. I think we ever said to grant and you're looking for us to grant. I'm looking at the quote and you gave us part of the quote without indicating that you were only giving us part of the quote. I believe that the part of the quote that goes against your position. I disagree with that. Advisory rates are appropriate when the question is of sufficient importance and there's a dearth of guidance on this issue. I believe that the case...

Are you reading from Judge Kaplan's concurrence? I'm reading from my notes right now. Perhaps you should go back and check your notes later to make sure you didn't omit a key phrase. I will. Thank you. And what is it? What's the basis of your accusation? What is it that Judge Garifis has done? I attach the recusal as an exhibit for this, but it deals with a cut off of cross-examination during the trial.

It deals with behavior during a restitution hearing, and it deals with a sentencing on a co-defendant because of the close relationship between that co-defendant and Mr. Renary. So in terms of the sufficient importance, this court has noted that 28 U.S.C. 445 that its purpose is the protection of the public's confidence in the impartiality of the judiciary. And further, in Lygon v. City of New York, 736, F3D-118, pinpoint site, 123. This court further noted that 28 U.S.C. 445A is designed to promote public confidence in the impartiality of the judicial process. The rule functions as a critical internal check to ensure the just operation of the judiciary. Therefore, I would submit to this court that the public confidence in the impartiality of the judiciary meets the standard of sufficient importance. Thank you very much. We've, of course, given you some extra time, which we appreciate, but let's hear from the government.

Good afternoon, and may it please the court. My name is Tanya Jjar, and I represent the government in this case. The government is not aware of any circumstance in which a petition for mandamus has been granted when the district court has not yet had an opportunity to rule or consider the underlying motion here, which Judge Garifis in this case deferred resolution of, until after the criminal appeal was resolved, this petition was filed nearly a month before the mandate was issued in that criminal appeal. Unless the court has any further questions, I request that the government request

that the court deny this petition. We'll reserve decision in 22-3112, K-30 versus USA. Thank you.