Beruflich Dokumente
Kultur Dokumente
06-20885
v.
JEFFREY K. SKILLING,
Defendant-Appellant.
INTRODUCTION
ruling on his case on remand from the U.S. Supreme Court. The question
presented on remand is whether the government can carry its heavy burden of
excluding beyond a reasonable doubt any possibility that, for the 19 counts of
conviction, the jury relied on the legally flawed “honest services” theory the
government urged the jury to accept. To state the question is to answer it. Given
the standards governing applications for bail pending appeal, and given the courts’
previous rulings on this issue, the government has no meritorious basis for
The district court six consecutive times found that Skilling is not a flight
risk and is not a danger to the community—and thus he satisfies the first
of two criteria for seeking bail. The district court made these rulings
before and after Skilling was tried, convicted, and sentenced to 24 years
in prison, and the district court’s assessments have always been borne out
to federal prison in December 2006 without incident and has served the
It is equally clear that Skilling satisfies the second part of the bail test—
his incarceration. U.S. v. Valera-Elizondo, 761 F.2d 1020, 1024 (5th Cir.
reasonable doubt that the jury did not rely on the theory to convict him.
able to carry that burden, given the record it made at trial when it
No. 06-20885 (5th Cir. Dec. 12, 2006). The Supreme Court’s unanimous
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important facts have changed. First, Skilling has had the opportunity to
make a full and complete record on appeal and in his concurrently filed
remand briefing why these five counts were equally tainted by the
meet its burden to overcome this showing. Second, even assuming these
five counts of conviction are not infirm, Skilling has served the requisite
Last week, the Seventh Circuit granted Conrad Black the same relief in
Skilling’s case before the Supreme Court. When the Supreme Court found that
Skilling and Black’s convictions were flawed and remanded Black’s case to the
See Exs. A, B. The court of appeals granted this request despite arguments from
tainted by the flawed honest-services charge; that Black’s separate conviction for
that Black had not served his sentence on the obstruction count. See Ex. C. The
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Seventh Circuit panel, led by Judge Posner, rejected these arguments, see Ex. D,
ARGUMENT
offense and sentenced to a term of imprisonment, and who has filed an appeal,”
(A) “that the person is not likely to flee or pose a danger to the safety of any
other person or the community if released”; and
(B) “that the appeal is not for the purpose of delay and raises a substantial
question of law or fact likely to result in (i) reversal, (ii) an order for a new
trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a
reduced sentence to a term of imprisonment less than the total of the time
already served plus the expected duration of the appeal process.”
18 U.S.C. § 3143(b)(1); see also U.S. v. Clark, 917 F.2d 177, 179 (5th Cir. 1990).
Section 3143(b) applies to Skilling’s request for release on remand from the
Supreme Court pending further proceedings, e.g., U.S. v. Beckley, 136 F. App’x
555, 556-57 (4th Cir. 2005); Ex. D, and Skilling easily satisfies the two-part test
flight risk: when he was indicted in 2004; in three instances before trial (in March
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and April 2004 and May 2005); when he was convicted in May 2006; and when it
sentenced Skilling in October 2006 to over 24 years in prison. R:297, 326-28, 743,
6361, 37222, 42182-83. In each instance, the district court found that Skilling was
neither likely to flee nor a danger to others. See id. The district court made these
findings even though the government argued that once he was convicted and
sentenced, Skilling posed a more significant flight risk. See U.S. Resp. to
Skilling’s Mot. for Bail Pending Appeal at 4-6 (Oct. 18, 2006) (sealed); see also
R:41339-49. As expected by the district court, Skilling never fled, and he timely
without incident. He exhibited good behavior there and was transferred to FCI
The last time Skilling sought bail in this Court—before he filed his direct
appeal—the government conceded that it could not dispute the district court’s
ruling in October 2006 that Skilling was not a flight risk. See U.S. Resp. to
Appellant’s Mot. for Bail Pending Appeal at 4 (5th Cir. Nov. 27, 2006). The
government has now changed position, according to its counsel, even though it
made no contention before the Seventh Circuit in Black that the defendant there
is a non-violent offender, and these are his first alleged offenses. He has never
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attempted to flee, never missed a court appearance, and timely reported to prison
when ordered. He has served his time without incident, with a record that makes
him eligible for early release. A decision to skip bail would be all the more
irrational now that Skilling has won a landmark victory in the Supreme Court,
completed close to four years of his sentence, and has every intention of continuing
to pursue his legal rights to clear his good name—as he has been doing for some
nine years (e.g., testifying before Congress and government agencies when asked,
easily can be met by standard conditions of release, as the court of appeals asked
flight exists at all. See also Ex. E (Order, U.S. v. Wright, 09-3467 (3rd Cir. July
the Fifth Circuit so that it may decide how the legal infirmity in his Count 1
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infected his entire case—requiring a reversal and new trial on all counts, entitling
and/or (ii). Indeed, Skilling’s convictions are currently presumptively invalid, and
the government bears the burden of proving harmless error beyond a reasonable
The burden of this bail submission, moreover, is not to establish that the
government will fail to prove harmlessness. Rather, the questions here are whether
Skilling’s application is “not for the purpose of delay” and whether his remand
Skilling’s bail application is not for the purpose of delay, and the
government cannot seriously dispute that the Skilling’s merits submission raises no
count, see Order, U.S. v. Skilling, No. 06-20885 (5th Cir. Dec. 12, 2006), and
Skilling’s remand papers elaborate the reasons why the government cannot show
Remand From The U.S. Supreme Ct. at 12-54 (July 28, 2010).
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Skilling’s remand brief also shows why the remaining five counts cannot
stand in light of the Supreme Court’s decision. See id. at 54-58. Given the
emergency filing in late 2006 (as well as Skilling’s inability to gain access to key
closing argument slides, which the government used to illustrate the honest-
services theory, including with respect to these five FSA counts), Skilling’s
arguments as to these five counts were not fully addressed then. Now that the
arguments have been fully developed on these five counts, Skilling clearly has
raised a “substantial question” whether the government can show that the legally
erroneous honest-services theory did not infect the FSA counts. See id.
“appeal is not for the purpose of delay and raises a substantial question of law or
fact likely to result in (i) reversal, (ii) an order for a new trial….”
2. Even if the Court determines in ruling on this motion that Skilling’s five
FSA counts might remain unaffected, Skilling has already served enough time in
“appeal is not for the purpose of delay and raises a substantial question of law or
fact likely to result in … (iii) a sentence that does not include a term of
total of the time already served plus the expected duration of the appeal process.”
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FSA counts with the sentence to run concurrently with one another and
prison on December 13, 2006, some 44 months ago. On September 22, 2010—just
five days after Skilling and the government agree he will file his reply brief on
remand in this case—Skilling will have served all the time he is required to serve
on these five counts. When the time Skilling will have served by that date is
combined with the amount of good-time credit he has accrued under the statute,
Skilling will have served all 52 months. See 18 U.S.C. § 3624(b)(1); Barber v.
Therefore, even if this Court were to conclude that the five FSA counts were
not likely to be reversed, Skilling would still be entitled to bail pending appeal at
this time. Judge Higginbotham denied bail in 2006 because “any resulting
sentence [on those five counts] will likely exceed the expected duration of his
appeal.” Order, U.S. v. Skilling, No. 06-20885 (5th Cir. Dec. 12, 2006). That is no
1
At the end of Skilling’s third year of incarceration (December 13, 2009), he
had served 1,095 days in prison and accumulated 162 days of good-time credit (54
days per year). At that point, “[b]ecause the difference between the time remaining
in his sentence and the amount of accumulated credit (i.e., [465 - 162]) is less than
a year ([303] days),” [2010] is the last year he will spend in prison.” Barber, Slip
Op. at 18. “Further, [2010] will be a partial year of [303] days (the other [62] days
of the year being offset by the remainder of the accumulated credit).” Under the
Barber ratio used to calculate good time in the final, partial year—1.148y =
[303]—Skilling will have to serve 264 days in 2010. See id. September 22, 2010
is the 264th day of 2010.
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longer true. At present, Skilling’s extant and remaining sentence on the five FSA
counts is “less than the total of the time already served plus the expected duration
Conrad Black’s successful application for bail captured the reason why the
“Society’s interests in seeing Mr. Black complete his sentence will not be
frustrated in the least if, after being released on bail, he does not prevail on
remand. But the additional time he spends in prison between now and then can
never be returned to him.” Ex. A at 20. The same is true for Jeffrey Skilling.
There is every reason to release him, and no reason not to. We respectfully urge
2
Not only can Skilling establish that he will have served his sentence on the
five counts at issue before his appeal is decided (something Black could not do), he
has additional arguments for release. These additional arguments are not necessary
to grant him bail, but as was the case in Black, are other sufficient reasons to do so:
Skilling has been a model prisoner, and because his sentence on these five
counts would run on September 22, 2010, he would have been entitled as far
back as September 2009, to be transferred from federal prison to a halfway
house to serve the remainder of his sentence. See 18 U.S.C. § 3624(c)(1).
Even without halfway-house placement, Skilling would have been allowed
to finish the remainder of his term in home confinement beginning in late
April 2010. See id. § 3624(c)(2).
According to a specific ruling made by the district court, Skilling was
entitled to reduce his sentence by up to one year if he completed a drug-and-
alcohol counseling program. See R:42177; 28 CFR § 550.58.
On Skilling’s appeal, this Court reversed the district court’s imposition of a
four-point “financial institution” enhancement. See U.S. v. Skilling, 554
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CONCLUSION
For the foregoing reasons, this motion for bail should be granted. As in
Black, the case should be remanded to the district court for the limited purpose of
Respectfully submitted,
F.3d 529, 595 (2009). Without considering any other facts, Skilling’s
adjusted offense level under the Guidelines would decrease from 40 to 36,
and the corresponding sentencing range would decrease by 35.6%. If the
Court were to apply a proportionate reduction to the 52-month sentence on
the FSA counts, Skilling’s sentence would be 33.8 months—10 months
fewer than the 43-plus months he has already served.
The financial-institution-enhancement ground would be only one ground,
among many—including all new loss calculations under the Guidelines—for
Skilling to seek a lower sentence on the five FSA counts. Cf. Ex. B at 9.
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CERTIFICATE OF CONFERENCE
Skilling has conferred with counsel for the United States regarding this motion.
Respectfully submitted,
06-20885
v.
JEFFREY K. SKILLING,
Defendant-Appellant.
Before ________________________:
Having considered the above-captioned motion, the Court hereby orders that
the disposition of his appeal in this Court. This matter shall be REMANDED to
the district court for the limited purpose of permitting the district court to
SO ORDERED.
Case: 06-20885 Document: 00511188299 Page: 15 Date Filed: 07/28/2010
CERTIFICATE OF SERVICE
This is to verify that true and correct copies of the following document
(Jeffrey K. Skilling’s Motion For Release On Bail Pending Further Proceedings On
Remand From The U.S. Supreme Court) has been filed electronically and served
by both Federal Express and electronic mail on this 28th day of July, 2010 on
counsel listed below.
J. Douglas Wilson
U.S. Attorney’s Office
450 Golden Gate Avenue, 11th Floor
San Francisco, CA 94102
Facsimile: (415) 435-7234
Counsel for Appellee