Homyrrh
03-18-2009, 01:34 AM
(from The New York Times (http://dealbook.blogs.nytimes.com/2009/03/17/could-madoff-go-back-to-his-penthouse/?ref=business))
Just a day after pleading guilty to 11 charges related to his vast Ponzi scheme, Bernard L. Madoff appealed the decision to revoke his $10 million bail and remand him into custody, a decision that could be the first step to him spending the rest of his life behind bars. Could the United States Court of Appeals for the Second Circuit release Mr. Madoff to return to his luxury Manhattan penthouse, at least for the short time until his sentencing?
While Mr. Madoff bears the burden of proof on the matter, it is certainly plausible that the appeals court could grant his request, or at a minimum return the case to Federal District Court for reconsideration. The question of bail is one of the few issues a defendant can appeal before sentencing, because the harm cannot be redressed at a later point in the case.
Under federal law, once a person is convicted of a crime, the burden shifts from the prosecution to the defendant to show by “clear and convincing evidence” that the person does not pose a threat to the community or that there is no appreciable a risk of flight before sentencing. The defendant must prove a negative, that he will not flee or cause harm, while before the conviction the government had to show the person posed an actual risk of flight or threat of harm for the court to deny bail.
The distinction is subtle but important because the defendant no longer can rest on the presumption of innocence and the law impels the judge toward sending the defendant to jail until sentencing unless there is a good reason not to do so.
Mr. Madoff argues that his conduct since confessing to the Ponzi scheme, coupled with the government’s asset freeze, shows that he is unlikely to flee. He denies having either the means or the incentive to flee.
His legal brief raises an interesting argument about people who commit crimes like Mr. Madoff, whose lawyers contend that “district courts from around the country have recognized that white-collar defendants, such as Mr. Madoff, should remain released pending sentencing.” The brief refers to bail granted to defendants before sentencing — like Kenneth L. Lay and Jeffrey K. Skilling of Enron, John J. Rigas of Adelphia Communications and Bernard J. Ebbers of WorldCom — as grounds for treating Mr. Madoff in the same way. If those disgraced chief executives got to spend time outside of jail before sentencing, then why shouldn’t he?
Do white-collar defendants, particularly those who held high corporate positions, have a right to bail because they can be presumed to have less incentive to flee the jurisdiction, unlike more common criminals who deal drugs or rob banks? One important distinction between Mr. Madoff and the four defendants he cites in his brief is that they all went to trial protesting their innocence and therefore had much less incentive to flee while their convictions could be appealed.
Under the fugitive disentitlement doctrine, a defendant who flees the jurisdiction after conviction forfeits the right to appeal the conviction. As courts are fond of saying, “The fugitive from justice has demonstrated such disrespect for the legal process that he has no right to call upon the court to adjudicate his claim.” (Ali v. Simms, 788 F. 2d 954, 959 (3rd Cir. 1986))
Many cases involving white-collar defendants involve the issue of bail pending the completion of the appeal of the conviction. In those cases, the question is whether there is a substantial basis to believe that the conviction will be overturned, which calls into question the fairness of incarcerating a defendant when there is a reasonable possibility the conviction will be overturned.
Courts have been inconsistent in granting or denying bail in such instances, with Mr. Skilling being sent to prison while his appeal was pending while Mr. Ebbers was allowed to remain free on bail until after the court of appeals upheld his conviction. In these cases, the specter of the fugitive disentitlement doctrine again worked to deter flight before the resolution of the appeal. Mr. Madoff has no such prospect of having his convictions overturned, so the potential for flight when facing a potential 150-year prison sentence may be much higher.
Whether one is a white-collar defendant — perhaps from the upper reaches of society — or a more common street criminal is irrelevant under the bail law. While the federal bail statute requires judges to revoke the bail of defendants convicted of certain crimes, including child pornography or specified weapons offenses, the law does not view white-collar defendants as any less risk of flight than those guilty of other crimes. And having spent time inside the Metropolitan Correctional Center in Manhattan, Mr. Madoff may have even more incentive to flee now that he has gotten a taste of what his future holds.
While the law clearly favors the decision to revoke Mr. Madoff’s bail, Judge Denny Chin of Federal District Court in Manhattan dealt with the issue only briefly at the end of the hearing, stating, “In light of Mr. Madoff’s age, he has an incentive to flee, he has the means to flee, and, thus, he presents a risk of flight.”
While the appellate courts are deferential to the factual findings of the trial judge, the statement regarding the risk of flight was cursory at best and could well result in a reversal of the decision to remand Mr. Madoff into custody. As the defense brief argues, every convicted defendant has an incentive to flee, especially one facing a substantial prison term.
It would not surprise me if the Second Circuit sent the case back to Judge Chin to develop a more extensive record supporting his finding that the defendant had not produced clear and convincing evidence that there is no risk of flight.
For those who thought we had seen the last of Mr. Madoff in a federal courtroom until his scheduled sentencing in June, don’t be too surprised if he’s back before then.
Just a day after pleading guilty to 11 charges related to his vast Ponzi scheme, Bernard L. Madoff appealed the decision to revoke his $10 million bail and remand him into custody, a decision that could be the first step to him spending the rest of his life behind bars. Could the United States Court of Appeals for the Second Circuit release Mr. Madoff to return to his luxury Manhattan penthouse, at least for the short time until his sentencing?
While Mr. Madoff bears the burden of proof on the matter, it is certainly plausible that the appeals court could grant his request, or at a minimum return the case to Federal District Court for reconsideration. The question of bail is one of the few issues a defendant can appeal before sentencing, because the harm cannot be redressed at a later point in the case.
Under federal law, once a person is convicted of a crime, the burden shifts from the prosecution to the defendant to show by “clear and convincing evidence” that the person does not pose a threat to the community or that there is no appreciable a risk of flight before sentencing. The defendant must prove a negative, that he will not flee or cause harm, while before the conviction the government had to show the person posed an actual risk of flight or threat of harm for the court to deny bail.
The distinction is subtle but important because the defendant no longer can rest on the presumption of innocence and the law impels the judge toward sending the defendant to jail until sentencing unless there is a good reason not to do so.
Mr. Madoff argues that his conduct since confessing to the Ponzi scheme, coupled with the government’s asset freeze, shows that he is unlikely to flee. He denies having either the means or the incentive to flee.
His legal brief raises an interesting argument about people who commit crimes like Mr. Madoff, whose lawyers contend that “district courts from around the country have recognized that white-collar defendants, such as Mr. Madoff, should remain released pending sentencing.” The brief refers to bail granted to defendants before sentencing — like Kenneth L. Lay and Jeffrey K. Skilling of Enron, John J. Rigas of Adelphia Communications and Bernard J. Ebbers of WorldCom — as grounds for treating Mr. Madoff in the same way. If those disgraced chief executives got to spend time outside of jail before sentencing, then why shouldn’t he?
Do white-collar defendants, particularly those who held high corporate positions, have a right to bail because they can be presumed to have less incentive to flee the jurisdiction, unlike more common criminals who deal drugs or rob banks? One important distinction between Mr. Madoff and the four defendants he cites in his brief is that they all went to trial protesting their innocence and therefore had much less incentive to flee while their convictions could be appealed.
Under the fugitive disentitlement doctrine, a defendant who flees the jurisdiction after conviction forfeits the right to appeal the conviction. As courts are fond of saying, “The fugitive from justice has demonstrated such disrespect for the legal process that he has no right to call upon the court to adjudicate his claim.” (Ali v. Simms, 788 F. 2d 954, 959 (3rd Cir. 1986))
Many cases involving white-collar defendants involve the issue of bail pending the completion of the appeal of the conviction. In those cases, the question is whether there is a substantial basis to believe that the conviction will be overturned, which calls into question the fairness of incarcerating a defendant when there is a reasonable possibility the conviction will be overturned.
Courts have been inconsistent in granting or denying bail in such instances, with Mr. Skilling being sent to prison while his appeal was pending while Mr. Ebbers was allowed to remain free on bail until after the court of appeals upheld his conviction. In these cases, the specter of the fugitive disentitlement doctrine again worked to deter flight before the resolution of the appeal. Mr. Madoff has no such prospect of having his convictions overturned, so the potential for flight when facing a potential 150-year prison sentence may be much higher.
Whether one is a white-collar defendant — perhaps from the upper reaches of society — or a more common street criminal is irrelevant under the bail law. While the federal bail statute requires judges to revoke the bail of defendants convicted of certain crimes, including child pornography or specified weapons offenses, the law does not view white-collar defendants as any less risk of flight than those guilty of other crimes. And having spent time inside the Metropolitan Correctional Center in Manhattan, Mr. Madoff may have even more incentive to flee now that he has gotten a taste of what his future holds.
While the law clearly favors the decision to revoke Mr. Madoff’s bail, Judge Denny Chin of Federal District Court in Manhattan dealt with the issue only briefly at the end of the hearing, stating, “In light of Mr. Madoff’s age, he has an incentive to flee, he has the means to flee, and, thus, he presents a risk of flight.”
While the appellate courts are deferential to the factual findings of the trial judge, the statement regarding the risk of flight was cursory at best and could well result in a reversal of the decision to remand Mr. Madoff into custody. As the defense brief argues, every convicted defendant has an incentive to flee, especially one facing a substantial prison term.
It would not surprise me if the Second Circuit sent the case back to Judge Chin to develop a more extensive record supporting his finding that the defendant had not produced clear and convincing evidence that there is no risk of flight.
For those who thought we had seen the last of Mr. Madoff in a federal courtroom until his scheduled sentencing in June, don’t be too surprised if he’s back before then.