Proposed jury instructions have been filed by both the prosecution and the defense.

The prosecution’s proposed instructions runs 115 pages and that does not count standard jury instructions given in almost every case. The defense’s proposed jury instructions run 89 pages.

It is interesting – for those who love to see how concepts are parsed and slant is built in, and sometimes buried in writings – the subtle differences between the defense’s and the prosecution’s jury instructions.

The judge, of course, makes the final call on what to instruct the jury, before they retire to deliberate.

The proposed jury instructions are, for the most part, somewhat tedious and hair-splitting.

There is one obvious interesting difference between the governments’ proposed instructions and that of Raniere’s defense team.

It comes in the request of standard jury instructions that both sides list by topic which each side is asking the judge to instruct the jury about.

The government asks on its list of standard jury instruction that the “Defendant’s Right Not To Testify (If Applicable)” be included.

The defense makes no mention of that in their list of standard jury instructions.

This is significant for, obviously, if Keith Raniere is not going to testify, the defense would want the judge to make the standard jury instruction on his right not to testify.

Here is a typical standard jury instruction on a defendant’s right not to testify:

Choice not to Testify or Present Evidence

(Name of the defendant) (A defendant) did not testify (did not present evidence) in this case. A defendant has an absolute constitutional right not to testify (or to present any evidence). The burden of proof remains with the prosecution throughout the entire trial and never shifts to the defendant.

The defendant is never required to prove that he is innocent. You must not attach any significance to the fact that (name of defendant) did not testify. You must not draw any adverse inference against (him)(her) because (he)(she) did not take the witness stand.

Do not consider, for any reason at all, the fact that (name of defendant)(a defendant) did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.

***

Does this omission by the defense mean Raniere will testify?

Not necessarily. Marc Agnifilo may be being strategic. He knows the judge will include this jury instruction – because he has to – that a defendant need not testify – if Raniere does not testify.

If Agnifilo put in the request for a standard jury instruction on a defendant not needing to testify, it might signal to the prosecution that Raniere is not going to testify. He might rather have them guessing – as a defense strategy.

On the other hand, Raniere may be planning to testify or considering whether he should. He does not need to make that decision until after the prosecution rests its case.

***

In addition to this lack of a request for the standard jury instruction on a defendant’s right not to testify, Agnifilo filed a supplemental letter regarding jury instructions that is perhaps at the heart of Raniere’s defense.

It is a request for a modification of the standard jury instruction of “good faith” as a defense.

Since the whole case may hinge on this one concept, I reprint Agnifilo’s letter in full below:

***

Defendant Keith Raniere respectfully submits this letter to supplement his June 7, 2019 letter requesting a good faith charge, among others. (Dkt. 692.) In the June 9th letter, we requested the good faith defense charge from Sand, Modern Federal Jury Instructions.

We supplement this to request the following Good Faith charge:

Good faith is a complete defense to the charges in this case. If the defendant believed in good faith that he was acting properly, even if he was wrong or was mistaken in that belief, and even if others were injured by his conduct, there would be no crime.

Therefore, if Mr. Raniere genuinely believed that he was acting properly or that he believed in the truth of representations he made, it does not matter that his conduct was improper or that his representations were untrue.

The burden to establish lack of good faith and criminal intent rests on the Government.

The defendant is under no burden to prove his good faith. Rather, the Government is under an obligation to prove bad faith beyond a reasonable doubt. (Adapted from United States v. Shkreli,

No. 15-cr-637 (KAM), Dkt. 295 at 83 (E.D.N.Y. July 28, 2017); United States v. Mangano, et al.,

No. 16-cr-540 (JMA) (E.D.N.Y.).)

Thank you for your consideration.

Respectfully submitted,

/s/

Marc A. Agnifilo, Esq., Of Counsel

Teny R. Geragos, Esq.

cc: Counsel for the government (via ECF)

***

There is no absolute slam dunk verdict perhaps in any case. It is at least possible that Raniere may be acquitted of some or all charges. There may also be a hung jury.

Of course it will be fascinating if Raniere does testify.

He may testify if he thinks he can persuade the jury that he truly did all he has done in “good faith.”

There is also a chance that his testifying [and the cross examination] might work against him and persuade any doubtful jurors that he is guilty beyond a reasonable doubt.

Jurors might not like him and the more he talks, the worse it might get – [see his testimony in the AT&T case]. This is especially true if Keith does here what he does best everywhere else: lies.

And then gets caught by the prosecution.

I can only imagine the cross examination – with questions about his phony IQ test, his fake judo claims, his Consumer Buyline scam, his perverted photographing of 15-year-old Cami, his dirty tricks to get women branded with his initials, the lies about collateral, maybe his erectile dysfunction [if admissible] and literally 1,000 other lies and tricks and manipulations – which all hurt others.

For a man with such good faith – it might be asked – how come so many women were hurt?

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