United States v. Raniere: Second Circuit Reaffirms Strict Standards for Rule 33 “Newly Discovered Evidence,” No Freestanding Post‑Judgment Discovery Right, and the High Bar for Judicial Recusal

Court: U.S. Court of Appeals for the Second Circuit

Date: October 27, 2025

Disposition: Orders denying third motion for a new trial, post‑conviction discovery, and recusal affirmed

Note: This is a summary order. Under Second Circuit rules, it does not have precedential effect, though it may be cited. The commentary below draws out the court’s reasoning and its practical guidance.

Introduction

This appeal arises from post‑trial efforts by Keith Raniere—convicted by a jury and sentenced to 120 years on racketeering and related offenses tied to the NXIVM enterprise—to obtain a new trial, compel post‑conviction discovery, and recuse the district judge. The challenged predicate acts included child exploitation and child pornography involving a 15‑year‑old victim (referred to as “Camila”), supported at trial by illicit photographs and associated digital metadata found on a Western Digital hard drive and a Canon EOS 20D camera memory card seized from a residence used by Raniere.

After his conviction was affirmed on direct appeal, Raniere mounted a third Rule 33 motion contending that newly discovered evidence and Brady violations demonstrated government fabrication and planting of child‑pornography evidence. He also sought broad post‑judgment discovery and recusal of the trial judge. The Eastern District of New York denied each request, and the Second Circuit, reviewing for abuse of discretion, affirmed.

Summary of the Opinion

• Rule 33 “Newly Discovered Evidence” and Brady: The court held that the camera card, hard drive, and their forensic artifacts were not “newly discovered” because the defense knew of and litigated these materials at trial and could have pursued tampering theories with due diligence. No Brady suppression occurred where the defense knew or should have known the essential facts to exploit any exculpatory value. Even assuming new or suppressed evidence, Raniere did not show a likelihood of acquittal or materiality sufficient to undermine confidence in the verdict.
• Confrontation Clause claim: The district court’s reliance on affidavits (including from the victim and an FBI scientist) in deciding the post‑trial motions did not violate the Confrontation Clause, which is a trial right; post‑conviction motions can be resolved on affidavits.
• Post‑conviction discovery: The Second Circuit rejected Raniere’s claim to a freestanding, non‑statutory right to post‑judgment discovery. Brady is a pretrial paradigm and “the wrong framework” once a defendant has been validly convicted; any later discovery generally proceeds, if at all, under habeas standards requiring “good cause.”
• Recusal: The court found no objective appearance of bias under 28 U.S.C. § 455(a). The district judge’s limits on cross‑examination to avoid harassment and protect a witness’s wellbeing, and expressions of impatience at a restitution hearing, fell squarely within well‑recognized judicial discretion and did not reflect deep‑seated antagonism.
• Bottom line: All district court orders were affirmed.

Analysis

Precedents Cited and How They Shaped the Decision

• Rule 33 and Newly Discovered Evidence
  • United States v. Gramins, 939 F.3d 429 (2d Cir. 2019): Emphasizes that Rule 33 relief is extraordinary and reserved for avoiding “manifest injustice.” The court uses this as the threshold framing—Raniere bore a heavy burden.
  • United States v. Forbes, 790 F.3d 403 (2d Cir. 2015): Sets the five‑part test for newly discovered evidence, including due diligence and likelihood of acquittal. The panel applies this framework to conclude that the digital evidence was available pre‑trial and that, even if considered new, it would not likely produce an acquittal.
  • United States v. Alessi, 638 F.2d 466 (2d Cir. 1980): Confirming that evidence is not “newly discovered” if it could have been found before or during trial with due diligence. The court relies on the extensive trial record showing defense awareness and cross‑examination of the digital artifacts.
  • United States v. Escalera, 957 F.3d 122 (2d Cir. 2020): Appellate deference to district court factual findings on Rule 33; the panel accepts the district court’s view that the government’s explanations for metadata anomalies were more plausible than the tampering allegations.
• Brady/MateriaIity/Suppression
  • Brady v. Maryland, 373 U.S. 83 (1963) and Strickler v. Greene, 527 U.S. 263 (1999): The court recites the Brady elements and finds no suppression because the defense knew or should have known of the essential facts.
  • United States v. LeRoy, 687 F.2d 610 (2d Cir. 1982): Evidence is not suppressed when the defendant knew or should have known the key facts—squarely applicable given defense access to the camera card/hard drive and the on‑record cross‑examination regarding potential metadata tampering.
  • Kyles v. Whitley, 514 U.S. 419 (1995): The materiality standard—would the suppressed evidence, considered cumulatively, have undermined confidence in the verdict? The court says no, in light of the robust body of corroborating evidence and the plausibility of government explanations.
  • United States v. McCourty, 562 F.3d 458 (2d Cir. 2009) and United States v. Certified Env’t Servs., Inc., 753 F.3d 72 (2d Cir. 2014): The defendant bears the burden to justify a new trial; speculation about what an expert “might” have found is insufficient.
• Use of Affidavits in Post‑Trial Proceedings
  • United States v. Franzese, 525 F.2d 27 (2d Cir. 1975): The court may consider affidavits submitted by the government in assessing the sufficiency of post‑conviction claims; this defeats Raniere’s Confrontation Clause argument concerning the Camila affidavit and the FBI scientist declaration.
• Harmlessness/Alternative Grounds
  • First Capital Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159 (2d Cir. 2004): Two racketeering acts are sufficient to establish a RICO pattern; with all eleven proven at trial, the court notes the RICO conviction would not be undone even if the challenged predicate acts were removed.
  • United States v. Bagley, 473 U.S. 667 (1985): The court references the materiality framework and concludes the outcome would not have changed.
  • United States v. Sanchez, 969 F.2d 1409 (2d Cir. 1992): Rule 33 relief focuses on whether there is a real concern that an innocent person has been convicted. The record, including messages, sister’s testimony, and medical records, dispelled that concern.
• Post‑Conviction Discovery
  • Dist. Attorney’s Office for the Third Jud. Dist. v. Osborne, 557 U.S. 52 (2009): Brady is a pretrial disclosure doctrine and the wrong vehicle for post‑conviction discovery claims following a fair trial. The panel relies on Osborne to reject a freestanding post‑judgment discovery right.
  • Bracy v. Gramley, 520 U.S. 899 (1997) and Habeas Rule 6(a): In pending § 2255 proceedings, discovery requires a showing of “good cause” and is not automatic. The panel flags this as the proper route if any discovery were warranted.
• Recusal
  • 28 U.S.C. § 455(a) and (b)(1): Objective appearance‑of‑bias standard; the appeal invoked § 455(a).
  • United States v. Carlton, 534 F.3d 97 (2d Cir. 2008); United States v. Amico, 486 F.3d 764 (2d Cir. 2007); LoCascio v. United States, 473 F.3d 493 (2d Cir. 2007); In re IBM, 45 F.3d 641 (2d Cir. 1995): Emphasize the objective observer test, the exclusive focus on appearances, the broad discretion in recusal rulings, and appellate reluctance to disturb such decisions.
  • Liteky v. United States, 510 U.S. 540 (1994): Judicial expressions of impatience, dissatisfaction, or even hostility ordinarily do not warrant recusal; only deep‑seated favoritism or antagonism making fair judgment impossible qualifies.
  • Delaware v. Van Arsdall, 475 U.S. 673 (1986): Judges have wide latitude to limit cross‑examination to prevent harassment, prejudice, or repetitive interrogation—supporting the trial judge’s narrowing of cross‑examination of a witness to protect her wellbeing.

Legal Reasoning

1. New Trial: No “Newly Discovered” Evidence and No Brady Suppression

   The court emphasized that the defense had full pretrial notice of the government’s reliance on the Western Digital hard drive and the Canon camera memory card, received forensic materials, retained an expert to review the digital evidence on FBI premises, and cross‑examined the FBI examiner at length—eliciting testimony that the camera card had been accessed while in FBI custody and that metadata can be altered. Those facts doomed any claim that the digital artifacts were “newly discovered” or that the government suppressed material within the meaning of Brady. Due diligence and knowledge defeated both showings.

   Even if the duplicate forensic image of the camera were re‑characterized as “new” or “suppressed,” the court found that Raniere advanced only speculative assertions (such as the desire to have it examined by an expert), not concrete, material exculpatory value that would likely lead to acquittal or undermine confidence in the verdict under Kyles. The district court credited competing government evidence—the FBI scientist’s declaration explaining why the anomalies were not indicative of tampering, and the victim’s affidavit confirming identity and age—finding those explanations more compelling than the defense expert’s retrospective critique. Appellate deference to those factual judgments sealed the analysis.

   The court added two independent reasons the Rule 33/Brady claims failed: (1) the substantial corroborative record (messages, the sister’s testimony, and medical records) supported the jury’s finding that the abuse occurred when the victim was 15; and (2) the jury found all eleven RICO predicate acts proved, and any two would suffice for the RICO pattern, leaving the overall verdict intact even if the contested predicate acts were removed.

2. Confrontation Clause: No Bar to Affidavits in Post‑Trial Motion Practice

   Raniere argued that reliance on affidavits (the victim’s and the FBI scientist’s) violated the Confrontation Clause. The court rejected that argument: post‑trial motions may be decided on affidavits, and the Confrontation Clause is a trial right, not a bar to the district court’s use of affidavit evidence in assessing post‑conviction submissions.

3. No Freestanding Post‑Judgment Discovery Right; Brady Is the Wrong Framework Post‑Conviction

   The panel declined to recognize a separate, non‑statutory right to broad post‑judgment discovery. Osborne squarely teaches that Brady is a pretrial disclosure doctrine, not a vehicle for post‑conviction discovery after a fair trial. The court also noted that, to the extent Raniere has a pending § 2255 petition, discovery there is possible only upon a showing of “good cause,” and habeas petitioners do not receive discovery as a matter of course.

4. Recusal: No Objective Appearance of Bias or Deep‑Seated Antagonism

   The court applied the objective observer standard under § 455(a). The district judge’s decision to limit cross‑examination of a cooperating witness to avoid harassment and protect her wellbeing fell within the trial court’s broad discretion to control proceedings; it did not signal partiality. Likewise, a tense exchange at a post‑trial restitution hearing reflected routine case management—“expressions of impatience” do not justify recusal absent deep‑seated antagonism. The panel praised the district judge’s handling of a protracted, high‑profile case with “skill, patience, and restraint.”

Impact and Practical Implications

• Digital forensics challenges must be timely and particularized: Litigants should raise tampering theories at trial when the defense has access to devices, metadata, and forensic images. Post‑trial speculation or retrospective expert critiques are unlikely to satisfy Rule 33 or Brady standards without concrete, materially exculpatory showings.
• Brady remains pretrial; post‑conviction discovery is exceptional: Defendants should not rely on Brady to compel discovery post‑verdict. The right path is via habeas with “good cause” under Rule 6—still a demanding standard.
• Affidavits are fair game in post‑conviction motion practice: Courts may resolve Rule 33/Brady claims on affidavit submissions; defendants should be prepared to counter with their own sworn, specific evidence rather than leaning on confrontation arguments.
• Materiality is holistic and outcome‑focused: Kyles requires courts to assess whether new/suppressed evidence would alter confidence in the verdict. Where other proof is abundant, especially on sensitive digital‑evidence issues, materiality will be hard to establish.
• RICO convictions are resilient when multiple predicate acts are proved: Even if some predicates are questioned, others can sustain the RICO pattern. Defense strategies should address the breadth of predicate proof, not just a subset.
• Recusal remains a high bar: Judicial case management decisions—limits on repetitive or harassing cross‑examination, or expressions of frustration—rarely demonstrate bias. Appellate courts defer heavily to trial judges on recusal unless the record shows a sustained, deep‑seated antagonism.
• Non‑precedential but instructive: Although this is a summary order without precedential effect, it signals the Second Circuit’s continued adherence to stringent Rule 33 and Brady thresholds, a cautious approach to post‑judgment discovery, and measured scrutiny of recusal claims—particularly in complex, high‑profile prosecutions.

Complex Concepts Simplified

• Rule 33 (New Trial): A post‑verdict safety valve used only in exceptional cases to prevent injustice. When based on “newly discovered evidence,” defendants must show they couldn’t have found the evidence before trial with reasonable effort, and that it likely would lead to acquittal.
• Brady Disclosure: The prosecution must share favorable, material evidence before trial. There’s no “suppression” if the defense already knows the key facts or can access them with reasonable diligence.
• Materiality (Kyles standard): The question isn’t whether new evidence would have helped the defense, but whether it would likely change the overall verdict, considering everything together.
• Metadata/Forensic Image: Metadata is data about a file (like when a photo was taken). A forensic image is a bit‑for‑bit copy of digital storage used to analyze contents without altering the original.
• 28 U.S.C. § 455(a) Recusal: Judges step aside if an informed observer would reasonably question their impartiality. Mere sternness, impatience, or limiting repetitive/harassing questioning does not equal bias.
• § 2255 Discovery: In federal habeas, discovery is not automatic; a petitioner must show “good cause,” such as specific reasons to believe discovery will prove a constitutional violation.
• RICO Predicates and Pattern: RICO requires a “pattern” of racketeering—at least two predicate acts. Proving many predicates creates redundancy that can sustain the conviction even if some are later attacked.
• Abuse of Discretion Review: A deferential appellate standard; the question is not whether the appellate court would have ruled differently, but whether the district court’s decision fell outside the range of reasonable choices.

Conclusion

The Second Circuit’s summary order in United States v. Raniere fortifies several settled principles. First, Rule 33 relief is rare; “newly discovered” evidence must genuinely be new and material, not a re‑packaging of issues explored (or available to be explored) at trial. Second, Brady is a pretrial obligation—not a post‑judgment discovery tool—and post‑conviction discovery proceeds, if at all, under the narrow “good cause” standard in habeas. Third, recusal requires more than case‑management firmness or expressions of impatience; only deep‑seated antagonism undermining fair judgment warrants disqualification.

Although non‑precedential, this decision offers clear guidance for future litigants: raise and develop digital‑forensics challenges promptly and concretely; do not rely on speculative post‑trial assertions to unsettle a verdict supported by extensive corroboration; and recognize that recusal demands compelling, objective indications of bias. On this record, the court discerned no manifest injustice and allowed the jury’s unanimous verdict—and the district court’s management of this complex case—to stand.