Scooter Libby: 30 Months in Prison, $250k Fine

By Jeralyn, Section Lewis Libby Trial Coverage
Posted on Tue Jun 05, 2007 at 10:55:00 AM EST
Tags: Libby Trial (all tags)

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Update: They are now arguing the issue of bond pending appeal. I didn't think they would do that before the Notice of Appeal and a formal motion for bond pending appeal was filed. Marcy is covering the arguments. I still think Libby will get a voluntary surrender, meaning he doesn't go in today, regardless of whether an appeal bond is granted.

Update: Libby stays out of jail for now. The Probation Department has to recalculate the guidelines grouping the obstruction, perjury and false statement charge. The judge has stayed imposition of the sentence. No decision on bond pending appeal today or voluntary surrender today, but Libby goes home. Briefs will be filed on the appeal bond issue, it will be heard a week from Thursday at 1:30.

******

Update: 30 months for Scooter Libby. $250,000. in fines.(CNN) Questions: Where did he ask to do his time? What's the voluntary surrender date?

Note: CNN is erroneously reporting Libby also got 2 years probation. It's supervised release, not probation. Supervised release replaced parole in the federal system in 1987. Probation and supervised release may be similar, but they are not the same.

Via Marcy at Firedoglake, Ted Wells has finished his argument for departures and a non-guideline sentence. Libby just spoke to the court:

More....

Libby: Family and I appreciate considerations shown to us during this conviction. In all that time I have recieved nothing but kindness from Court's personnel, your honor's staff, court administrators, US Marshalls, Court security officers, and probation officer. I am grateful. Now I realize fully Court must decide on punishment, I hope court will consider my whole life. Thank you your honor.

It's crunch time. Walton has already said he'll go with the Government's assessment of the Guidelines. Will he grant any departures? Or will Libby get the full boat of 30 to 37 months?

Stay tuned. Should be any minute now.

11:45. Doesn't look good for Libby. Per Marcy,

....the evidence overwhlemingly indicated Libby's culpability despite best efforts of counsel. I've watched these proceedings with a sense of sadness bc I have highest respect for govt servants. Important taht we expect and demand a lot of people who are in those situations. They have a certain high level obligation when they occupy that situation. In this situation Libby failed to meet the bar.

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Scooter Libby: 30 Months in Prison, $250k Fine | 48 comments (48 topical)

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2 and half years (none / 0) (#1)
by Big Tent Democrat on Tue Jun 05, 2007 at 11:07:46 AM EST

What opportunity does he have for time off for good behavior and the like?

he'll have to do at least a year right?

He does 85% (none / 0) (#3)
by Jeralyn on Tue Jun 05, 2007 at 11:12:11 AM EST

He gets 54 days a year off after the first year. There is no parole in the federal system. Time off a sentence is set.


: More than two years then (5.00 / 1) (#6)
by Big Tent Democrat on Tue Jun 05, 2007 at 11:15:41 AM EST

I tghink that means pardon then. He'll have to do a year though probably.

So the next issues are (none / 0) (#5)
by Big Tent Democrat on Tue Jun 05, 2007 at 11:14:38 AM EST

bail pending appeal and the Pardon issue.

Appeal will take, what, six to eight months?

Assuming he loses on appeal, he would have to report to jail in January 2008? I don't see Bush pardoning him before the very end of his term, so he'd be looking at a year in jail IF Bush pardons him, which I think he will.

The money will be raised for Scooter obviously for the fine and his life after jail will be more than fine, he'll be a Wingnut folk hero.

Of course, in the rest of the world, he'll be disgraced which matters.

I think he did this all for Cheney as do most all of you of course.

How does Cheney feel today? Fine I am sure. He does not give a rat's patooty about anyone but himself.


: 1/08 (none / 0) (#8)
by Deconstructionist on Tue Jun 05, 2007 at 11:21:30 AM EST

would be very quick for an appeal to be decided, just at the circuit level, in a case such as this. If he has reason to believe a pardon is forthcoming, and is out on bond it probably would not be impossible to stretch it to 1/09 and pardon time.

: Appeal would take about a year I think (none / 0) (#11)
by Jeralyn on Tue Jun 05, 2007 at 11:51:53 AM EST

It was a long trial with voluminous pre-trial pleadings. The rulings on the the pre-trial motions will be appealed, as well as trial rulings.

good time (none / 0) (#2)
by Deconstructionist on Tue Jun 05, 2007 at 11:10:49 AM EST

is just 57 days a year.

so he'll get approximately 142 days -- less than 5 months off. He will become eligible for halfway house incarceration at the end.

Good lesson for Bush sycophants (none / 0) (#4)
by Edger on Tue Jun 05, 2007 at 11:12:16 AM EST

Lying is a jailable offense.

Surrenders on Friday? (none / 0) (#7)
by Big Tent Democrat on Tue Jun 05, 2007 at 11:17:26 AM EST

I thought I saw that. Obviously bail application first no?

: No (none / 0) (#9)
by Deconstructionist on Tue Jun 05, 2007 at 11:27:41 AM EST

He will be ordered to self-report 9if noot granted bond pending appeal under 18 USC § 3142 upon designation by BOP. Usually the court sets a date to self-report that is arbitrary (30 days) but if as is often the case BOP has not designated the facility yet, you can file a motion to extend the report date until designation. there's no way he will report on Friday.

Coverage of sentencing (none / 0) (#10)
by naschkatze on Tue Jun 05, 2007 at 11:49:24 AM EST

No live blogging here, but I found the threads here related to the sentencing more interesting. Decon should be a legal reporter for one of the blogs if he could fit it in with his day job.

WoHoo!! (none / 0) (#12)
by Johnbo on Tue Jun 05, 2007 at 11:53:24 AM EST

WoHoo!! Finally some accountability!! Time to uncork the champagne. Can't wait to see how Plame's lawsuit against Cheney turns out.

The whole thing in the recent update from FDL (none / 0) (#13)
by Deconstructionist on Tue Jun 05, 2007 at 11:54:00 AM EST

makes no sense.

If Walton is staying imposition of the sentence pending making sure all the lesser sentences are correctly calculated (which makes no difference at this point because the grouping rules call for the highest OL to be the one used but which could be important if an appeal prevails on the highest count of conviction) then Wells supposed concern about the 10 days is misplaced. He doesn't have to file an NOA until 10 days from the imposition of judgment. (NOA is significant because the district court loses jurisdiction once the case is on appeal to the CCOA and it takes longer to get a ruling on bond from a CCOA than a district court).

I think he's just using that to force Fitzgerald to rush his memo to the Court. fitzgerald should have told Walton that if he is holding off on signing the judgment order in a criminal case there is no time pressure on briefing the issue of bond.

I think the recalculation (none / 0) (#14)
by Jeralyn on Tue Jun 05, 2007 at 12:00:04 PM EST

is not to change the outcome, but to be factually correct for the record on appeal. According to Marcy, Fitz said at the end the Judge's calculations weren't quite right because obstruction was level 19, perjury was level 17 and false statements is 0 to 6 months. The probation department said it had grouped according to its calculations, which were lower, and now has to revise given the court's findings.

Like Decon, I'm going by what Marcy is reporting.


Keeping a clean record was my take on the (none / 0) (#16)
by scribe on Tue Jun 05, 2007 at 12:07:49 PM EST

recalculation, too.
No sense in having the CoA send the case back for resentencing over a "bad" calculation (Though, I'd suppose, Booker would tend to enable smoothing those bumps out.).

But, until the stay of judgment is lifted, there is no judgment. So, theoretically, Walton could come back next week and decide, "y'know, I think he should get more. Or less." And we'd be stuck with that surprise.


The calculations (none / 0) (#22)
by Deconstructionist on Tue Jun 05, 2007 at 12:21:06 PM EST

of the guidelines as to all the counts is important because IF Libby were to prevail on appeal by having the obstruction conviction vacated (or possibly but unlikely here having the sentencing reversed and remanded with instructions that would result in the obstruction count then having a lower sentencing range than another count) whatever other count would then carry the highest sentence would dictate the sentence then imposed after the appeal.

In other words, if there is an error in calculating the next highest count that would have to be appealed as well but if it is "fixed" now in the district court the appeals court doesn't have to waste time with it and if there is a remand after appeal then the district court already has the guidelines correctly calculated and could proceed directly to imposing a sentence in that range.


Based on the law you cited to me (none / 0) (#28)
by Big Tent Democrat on Tue Jun 05, 2007 at 12:32:19 PM EST

is there a mechanism whereby a convicted person can obtain an expedited appeal if he is incarcerated pending appeal?


: you can file a motion (none / 0) (#29)
by Deconstructionist on Tue Jun 05, 2007 at 12:41:21 PM EST

seeking expedited appeal, but in a criminal case the grounds you would cite in a post-judgment appeal are basically the same ones you would cite in seeking bond pending appeal (see § 3143 in the other post).
I've had criminal appeals expedited but to my memory it was either a pre-trial bond ruling that had been appealed or one of the rare other instances where interlocutory appeals were involved.

No bail pending appeal? (none / 0) (#15)
by Big Tent Democrat on Tue Jun 05, 2007 at 12:05:39 PM EST

So sez empty wheel as to Walton's inclinations.

I do think that is wrong as a general matter.

They are going to brief the issues (none / 0) (#17)
by Jeralyn on Tue Jun 05, 2007 at 12:10:08 PM EST

briefs will be filed and the Judge will decide at a hearing next Thursday.

Even if he decides against bond pending appeal, he still has to deal with the voluntary surrender issue.

It takes weeks for the Bureau of Prisons to decide where to designate someone. Unless you're a flight risk, which Fitz concedes Libby is not, and you've been on bail for the pendency of the case, the Judge usually allows you to stay out until BOP decides where you are going. Then you show up there on a date specified by the Judge.


MSNBC agrees with Marcy (none / 0) (#18)
by Jeralyn on Tue Jun 05, 2007 at 12:15:44 PM EST

that the Judge seemed not inclined to grant bail pending appeal. The reporter also said he'd get a voluntary surrender which Walton put at 45 to 60 days.


How common is it to deny bail pending appeal? (none / 0) (#19)
by Big Tent Democrat on Tue Jun 05, 2007 at 12:18:24 PM EST

We have no counterpart in the civil side, other than staying an injunction, which happens sometimes but not very often.


Very common (none / 0) (#23)
by Deconstructionist on Tue Jun 05, 2007 at 12:26:33 PM EST

Most people do not get bail pending appeal. 18 USC § 3143 requires:

(b) Release or Detention Pending Appeal by the Defendant.-- ...
(A)...clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142 (b) or (c) of this title; 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.


: Wow! (none / 0) (#25)
by Big Tent Democrat on Tue Jun 05, 2007 at 12:28:43 PM EST

That is a terrible law.

: In other words (none / 0) (#26)
by Deconstructionist on Tue Jun 05, 2007 at 12:29:47 PM EST

You have to convince the presiding judge that there is substantial likelihood HE made an error.

Meanwhile (none / 0) (#20)
by Jlvngstn on Tue Jun 05, 2007 at 12:19:06 PM EST

Gangs in Chicago, NY and LA among others are allowed to sell dope on the streets, intimidate residents, extort and murder. Ask any cop in one of those 3 cities what the department could do with the millions spent on chasing this down and my guess they could find better ways to spend that money. The "rule of law" is ridiculous here when you think of the thousands of americans murdered in poor neighborhoods every year and the cries from the federal gov't about not having any money to assist states with more police and more importantly, better educational opportunities for those in the poor hoods.

From now until his pardon more than 10,000 people will be murdered in this country, how many lives could be saved with the millions spent on this trial????

Not a victory by any stretch of the imagination in my book when you consider the plight of those barely living in the poor communities....

Oy again (5.00 / 1) (#27)
by Edger on Tue Jun 05, 2007 at 12:30:21 PM EST

how many lives could be saved with the millions spent on this trial????

In a nation that prides itself on living by the rule of law, Mr. Libby should have been tried for treason.
...
Mr. Libby - along with Dick Cheney, Don Rumsfeld, Paul Wolfowitz, Doug Feith, Stephen Hadley, Condi Rice and a slew of others - was an instrumental member of the cadre that sold the American people an outrageous raft of lies regarding the presence of weapons of mass destruction in Iraq.
...
The lies promulgated by Mr. Libby led directly to the deaths of 3,185 American soldiers and the wounding of between 47,000 and 53,000 more soldiers. This amounts to between a third and a fourth of the entire active combat force of the United States military.
The lies promulgated by Mr. Libby led directly to the deaths of hundreds of thousands of Iraqi civilians, the maiming of thousands more, and the creation of a sectarian civil war in that nation whose effects will be generational in impact.
--Scooter Libby: A Damned Lucky Man

How many lives could have been saved if the millions spent on this trial HAD NEVER NEEDED to be spent?


the lies of scooter (none / 0) (#33)
by Jlvngstn on Tue Jun 05, 2007 at 02:07:07 PM EST

at least what he was tried for had nothing to do with Iraq. Unless of course you are Karl Rove and Libby is a demo than Saddam had everything to do with 9-11.

If this were Jer's client or any other atty on this site the screaming would be "it was a witch hunt, they prosecuted nobody for the outing of the agent and needed a fall guy to justify the investigation."

I take no joy in seeing Scooter go down for lying to the grand jury, I do however take umbrage at the cost to US taxpayers for a prosecution about outing a cia operative that netted a lie about who outed her. No other charges, nothing about the original complaint.

Legalise drugs and prosecute violent offenders. Now there is a platform I will support. Hanging Scooter because we hate this administrations policies is childish vengeance.

If this were a demo most of you would be up in arms at the silliness of it all.


Hardly (none / 0) (#37)
by squeaky on Tue Jun 05, 2007 at 02:15:21 PM EST

If this were a demo most of you would be up in arms at the silliness of it all.

Wrong.

Sounds like you only followed the faux news version of the case.

Are you also outraged about the cost of the war?


: Ahem (5.00 / 1) (#39)
by Jlvngstn on Tue Jun 05, 2007 at 02:22:37 PM EST

Never watch faux, feel it is a propaganda machine for the right. I did however read everything jeralyn posted on the matter.

: Cost of war (5.00 / 1) (#40)
by Jlvngstn on Tue Jun 05, 2007 at 02:24:01 PM EST

Not only outraged about the money and legality of it, but that more than 25000 americans are dead or wounded for life. Not counting those who will suffer from PSTD and will never really readjust to society. But of course, you see scant mention of that in the MSM.

I suppose then you're *really* choked (5.00 / 2) (#30)
by Alien Abductee on Tue Jun 05, 2007 at 12:42:19 PM EST

about that $100B being thrown away on 3 months carnage in the Debacle...


I really choke (5.00 / 1) (#34)
by Jlvngstn on Tue Jun 05, 2007 at 02:08:44 PM EST

That a "fiscal conservative" party is cheering a certified loser in the Iraq war and that we could have sent millions of kids to college for what we spent on an ill advised criminal war. So I guess, sure I hate the policy and the war.


: You do realize (5.00 / 2) (#46)
by Alien Abductee on Tue Jun 05, 2007 at 02:56:43 PM EST

that Scooter's perjury and obstruction of justice have absolutely everything to do with that "ill advised criminal war", don't you?

Oy (none / 0) (#21)
by Big Tent Democrat on Tue Jun 05, 2007 at 12:20:58 PM EST

Waste (none / 0) (#24)
by squeaky on Tue Jun 05, 2007 at 12:27:12 PM EST

Not to mention all the deaths from old age, automobile accidents and cancer.

Libby should have been a doctor, it would have saved America from much tragedy.


: the gov't has no obligation (none / 0) (#48)
by Jlvngstn on Tue Jun 05, 2007 at 04:42:35 PM EST

to protect you from old age, car accidents (most anyway) and cancer. They do however have an obligation to protect its citizens from violence and last year as a nation we had approximately 15000 homicides. So yes, I care a hell of a lot more about that then I do an aide getting sentenced for lying when the original prosecution was for outing an undercover operative. Since there are no charges filed for the act of treason in my estimation, I would consider this a monumental failure and a waste of money.

In a way.... (none / 0) (#31)
by kdog on Tue Jun 05, 2007 at 01:25:46 PM EST

this was a gang prosecution J. The gang I speak of is based in Washington DC and is more dangerous to the people of the world than every Blood, Crip, MS-13, and Gambino put together. Much like the feds got Al Capone on tax evasion as opposed to his more serious crimes, we got Libby on perjury instead of his and his cohorts more serious crimes.

It's no victory, but at least one of these bastards will reap what he helped sow...a taste of prison nation. The waste of cash is a drop in the bucket, they'd only waste it someplace else anyway, like in the ONDCP budget.

BTW...speaking of my neck of the woods, I think the last thing we need is more cops. You literally cannot escape their prying eyes on the streets these days.


no 5 months in and 5 months halfway in (none / 0) (#32)
by TEScott on Tue Jun 05, 2007 at 02:02:13 PM EST

Jerelyn--

We can always count on you to take the defense point of view. The mark of a great defense attorney.

Yes, that's the lens I view all cases from (none / 0) (#35)
by Jeralyn on Tue Jun 05, 2007 at 02:13:07 PM EST

Even when it's someone like Libby. I make no secret about that. But...the reason I made that prediction is because in my experience judges give great weight to the Probation Department's calculations and the Probation Department calculated Libby's guidelines at 15 to 21 months.

The Probation Department also found that at least a few departure grounds were present. Had the judge just found one for 2 points, Libby would have been in the split sentence range of 10 months (5 and 5.)

I also think the cross-referencing guidelines and instruction to use the accessory after the fact guideline is confusing, illogical and bad policy.


: and this stopped something from being adopted (none / 0) (#43)
by Deconstructionist on Tue Jun 05, 2007 at 02:45:48 PM EST

as law when?

I also think the cross-referencing guidelines and instruction to use the accessory after the fact guideline is confusing, illogical and bad policy.
The entire guidelines regime can be called confusing, illogical and bad policy. In essence if you get convicted of a crime your punishment is determined (within broad statutory constraints) based upon whatever the judge decides you * more likely than not did in addition to what the jury convicted you of doing. Booker just gives a judge who really really wants to (and is able to articulate such overwhelmingly compelling reasons that the Court of Appeals is persuaded not to reverse him) discretion to impose a sentence outside the applicable guideline range which is still calculated as it ever was.
In my opinion this is just another of countless cases where the guidelines and the "real offense" philosophy embodied in relevant conduct, various cross references and SOCs combined with the absurd (and in my opinion conflicting with "real offense" principles) notion that reducing sentencing to "calculating" factors assigned fixed and arbitrary values regardless of how well those values "fit" the instant case results in outcomes few understand and most find curious, to say the least.
* and in cases of joint conduct acts the judge thinks others more likely than not committed if the acts were forseeable to you.

et al (none / 0) (#42)
by jimakaPPJ on Tue Jun 05, 2007 at 02:44:00 PM EST

This is not justice.

: I agree (5.00 / 1) (#44)
by Peaches on Tue Jun 05, 2007 at 02:48:19 PM EST

JUSTICE would have produced Rove, and Cheney, instead. And than the whole house of cards would have begun to fall.

: As the old saying goes... (none / 0) (#45)
by Deconstructionist on Tue Jun 05, 2007 at 02:49:44 PM EST

It's court of LAW not a court of JUSTICE.
To an extent this is unavoidable as everyone has his own concept of "justice" but courts have to apply laws that apply universally. However, this does not excuse the willful failure of Congress for 20 years now to ignore the CONSISTENT and WIDESPREAD deviations from most people's ideas of justice the guidelines create.

Do you really mean "stay of imposition"? (none / 0) (#49)
by Peter G on Tue Jun 05, 2007 at 10:09:50 PM EST

TL: You wrote: "The judge has stayed imposition of the sentence." Are you sure? Do you possibly mean a stay of execution of sentence? (That's how you get the voluntary surrender.) To stay imposition is to refrain from formally pronouncing the sentence. (To "stay execution" is to delay the carrying out of the sentence, that is, its start date.) But you say the judge did at least announce the sentence (i.e., 30 mos CBOP, 2 yrs TSR, etc.). To announce but not "impose" the sentence seems odd to me. Are you sure? Nor does it make sense to delay formal imposition of sentence for several days to allow a recalculation of the guidelines based on a judge's rulings during the sentencing hearing. Recalculations occur at sentencings all the time, and doesn't take more than five minutes, if you know what you're doing (as the USPO ought to, if not all the lawyers in the room and the judge, too, for that matter). Something in the reporting thus seems garbled to me.
As to the standard for bail pending appeal, Decon and BTD have misunderstood the standard. The judge does not have to predict a likelihood of being reversed. He just has to say there is an issue on which reasonable judges could differ, or which is novel, and which -- if decided in the defendant-appellant's favor -- would likely result in reversal.
Finally, as for expedited appeal, TL is right, the normal time for the appeal process is around one year. When you expedite a criminal appeal you can get it down to around six or so months, but not much less.

: I wasn't there, but (none / 0) (#50)
by Jeralyn on Tue Jun 05, 2007 at 11:01:42 PM EST

Peter, I understood from Firedoglake's live-blogging that he decided to hold back on imposition of the sentence, but you could be right, he only stayed the execution of the sentence. But, in that case, I think he would have taken up the issue of voluntary surrender today.

Fitz: Wanted your honor to make aware of one thing. 30 months on obstruction. Just wanted to point out, if your honor was trying to correspond, one would be lower and one would be higher. By our read on false statements would have a 6, would mean guidelines range for false statement is 0-6 months, on other hand, perjury counts, level 14, but your honor found intereference enhancement, perjury 24-30 months.
Walton: I was under the impression it was all counts.
Fitz: if we do not litigate now, I'd like to make sure it's on the record that a level 17 would be range of perjury counts, in light of your honor's ruling, false statements would be 0 to 6, we were not as clear as we should have been.
Walton: does probation agree with those assessments?
Walton: I'm going to stay the sentence at this point until Probation has had a chance to break down sentence, until next Wednesday.
Probation: In original calculation, we grouped all four counts, that changes the calculations, and prosecutor is correct that it lowers level for some accounts.
Walton: I'll stay until Probation does the new calculations.
I will be getting a copy of the transcript of the sentencing hearing tomorrow, and will report back then.
As always, thanks for commenting. It's great to have an appellate and sentencing guru chime in.

Are all the news reports wrong, then? (none / 0) (#51)
by Peter G on Tue Jun 05, 2007 at 11:22:51 PM EST

From that excerpt, Jer, I would would say that the judge stayed neither impostion nor execution -- he didn't use either of those technical terms, but rather that he "stayed" the sentencing proceedings -- that is, postponed the conclusion of the hearing -- until next Wednesday -- that he hasn't really sentenced yet at all! What Fitz is saying about the Guidelines in that quote is nonsense, just ignorant. Under the federal sentenceing guidelines, as you know, you don't calculate a sentencing range for a particular count or group of counts, you calculate a level for that count or count group, and then use the "grouping" rules to get one combined level for the case, and then that level (correlated with a criminal history score) determines the range of months recommended. What exactly does the excerpt of transcript say that is being interpreted as an announcement of what the sentence is or will be?

not hardly (none / 0) (#52)
by Deconstructionist on Wed Jun 06, 2007 at 07:17:12 AM EST

The grouping rules here are simple. These are all closely related counts placed in the same group and the offense level for the group is the OL applicable to the most serious of the counts.

thus, in practice the necessary step is to calculate the offense level for each individual count to determinbe which one is the most serious (results in the highest OL). that's the obstruction count with the c-r.

so, the 19 OL is gong to be the TOL. They still need to get the other counts fixed even though it makes no difference now because if the obstruction conviction were to be vacated on appeal but the other convictions stand then he would be resentenced on the basis of the count with the next highest OL -- so they need to get that right and what fitzgerald said is most definitely not nonsense.