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Sunday, May 27, 2007

Straight to Prison for Scooter?

In just over a week, Scooter Libby will be sentenced for his perjury, false statement, and obstruction of justice convictions.  Doug Berman , TalkLeft, and others have begun to analyze whether the government will get the 30 to 37 month sentence they are asking for.  Prison time isn't the only important issue to be decided though.  Perhaps more significant (at least for pardon purposes) is whether Libby will have to report to prison immediately or whether he'll be granted bail pending appeal.  By looking to 18 USC 3143, we're supposed to be able to figure this out by analyzing:

(1) whether Libby poses a danger to the community;
(2) whether his appeal is for the purpose of delay;
(3) whether his appeal raises a "substantial" question of law or fact; and
(4) whether the substantial question is likely to result in a new trial or a new sentence that wouldn't include imprisonment. 

In white-collar cases, the offender typically poses no danger to society, so the whole fight is over whether he can point to a substantial legal issue that he is likely to prevail on.   How well do courts assess this though?  Look at the decisions courts have made in other high-profile white-collar cases:

    Bernie Ebbers:  Free pending appeal, but conviction upheld
    John & Timothy Rigas:  Free pending appeal, but convictions upheld
    Martha Stewart:  Free pending appeal, but conviction upheld
    Frank Quattrone:  Free pending appeal and conviction reversed
    Jeff Skilling:  Ordered to prison immediately, and appeal is currently pending
    Dennis Kozlowski: Ordered to prison immediately (by a state judge), and appeal is currently pending

Are we to believe that John Rigas was more likely to win on appeal than Jeff Skilling?  That seems unlikely.  As the White Collar Crime Prof Blog explains, the Second Circuit upheld 22 of the 23 counts against Rigas just a few days ago.

Are judges simply too lenient in doling out bail pending appeal to white collar offenders?  The Quattrone example might lead us to answer "no," but the Ebbers, Rigas, and Stewart cases make me think otherwise.

Posted by Adam Gershowitz on May 27, 2007 at 05:48 PM in Criminal Law | Permalink

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