Joseph Tully, Raniere’s lawyer, submitted a motion to delay the direct appeal on April 27, 2022. New evidence that crucial evidence was faked, some of it while in FBI custody, was discovered by three forensic experts, one of whom was a former FBI Special Agent and Unit Chief. The Department of Justice attorney termed the request for a stay “frivolous.” and the court agreed.
Judge Nicholas G. Garaufis, a Democrat appointee who defied the Trump administration and reinstated DACA, heard Tully’s demand for a new trial based on government meddling on May 3, 2022.
Tully asked for Garaufis’ recusal on May 6, 2022, citing his bias in non-judicial actions. These included his comments after ending the prosecution’s cross-examination of the government’s key cooperating witness, in which he said, “This is not DOS,” that she was a “broken woman,” and that he was a human first before he was a judge.
As of May 9, 2022, the judge had determined that the government’s evidence manipulation motion did not provide a “substantial issue” and hence had decided not to request that the appellate court return jurisdiction back to him. Garaufis made it clear he doesn’t think the existence of convincing proof of government criminality in his court is a major concern.
In recognition of their “distinguished service,” Attorney General Merrick Garland presented the 69th Annual AG Awards to the prosecution and FBI team on July 12, 2022.
Tully applied for a stay of the appeal once again on October 6, 2022, this time with evidence that the government had replaced their FBI expert witness with someone whose prior testimony would have undermined their entire metadata-based case. At the same news conference, Professor Alan Dershowitz, former US Attorney Bud Cummins, and two additional former FBI professionals all testified that there had been considerable tampering and that it was scientifically certain that photographs had been put on the hard drive and the camera card in question had been altered while in the control of the lead case agent. Another time, Trowel deemed it “frivolous.” After a rehearing, the 2nd Circuit once again ruled against the stay.
The 2nd circuit court of appeals dismissed Raniere’s case on December 9, 2022, giving Garaufis back his jurisdiction.
Tully filed a petition of mandamus with the 2nd Circuit on December 12, 2022, requesting that Garaufis rule on the recusal before ruling on the government tampering motion, fearing that otherwise, Garaufis would simply sweep the meddling under the rug.
Tully requested an amendment to his fresh trial motion on December 13, 2022, including new discoveries of tampering and new experts. As of yet, Garaufis has made no decision.
On January 18, 2023, Tully opposed mooting Raniere’s appeal of his restitution by submitting four additional expert affidavits to the Second Circuit, arguing that Raniere’s convictions “resulted from the evidence that had been unlawfully tampered with and fabricated by the Federal Bureau of Investigation.” Among the experts cited were three former FBI examiners: Mark Bowling, William Odom, and Stacy Eldridge.
It was on January 24, 2023, that Tully argued before the Second Circuit Court of Appeals for a writ of mandamus, stating that “a judge determining on recusal before considering any substantive motions” “is not only reasonable and rational but also necessary for maintaining the credibility of our judicial system as a whole. It makes no sense to have a judge who has a recusal motion pending also rule on other, more important matters. It explodes unfairness.”
The Second Circuit Court of Appeals rejected the mandamus petition without reason on January 25, 2023. Now Judge Garaufis can either deny the tampering motion outright, avoiding a decision on his own recusal, grant the motion, or order an evidentiary hearing, at which point he might reschedule the trial or even dismiss the indictment if he finds that the government’s actions were so egregious as to warrant a new trial. For the sake of the motion, he might also let Tully add further evidence and witnesses.