Madoff and Bail Pending Sentencing

By Jeralyn, Section Crime in the News
Posted on Wed Mar 11, 2009 at 06:19:00 PM EST
Tags: Bernard Madoff (all tags)

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Does anyone find it unusual that Bernard Madoff's lawyers didn't file a motion today for bail pending sentencing? I just checked the court docket and the only thing they filed were their entries of appearance. The only filing by the Government was the emails it received from victims, which it filed under seal.

Has the Government agreed to let Madoff stay out on bond pending sentencing? If not, why wouldn't Madoff's lawyers file a big brief arguing for it? The Judge said yesterday it's one of two issues he will take up tomorrow./

Here's Reuters and Bloomberg's latest articles with speculation from lawyers and sources they interviewed about why Madoff may have agreed to plead guilty, but it's still not adding up for me. I have a long post ready on other possibilities, but I'm holding off in case some real information emerges tonight or tomorrow. I don't feel like just fueling more speculation. [Updates below]

This AP article suggests the Judge will grant bail pending sentencing:

Chin has not said how he intends to rule on the bail issue, but he indicated he would give victims who disagreed with his decision a chance to speak before he makes his order final.

What victim is going to argue for bail? If this is what Chin said, then it seems he's going to grant bail. Do the prosecutors also agree? If so, then that's a concession they made to get his guilty plea and while there may not be a formal "plea bargain," there is a plea deal.

A plea deal is any concession made in exchange for a plea of guilty. It doesn't just refer to a sentence reduction or an agreed upon sentence. If the Government agrees to let someone plead guilty to 8 charges when it would otherwise charge them with 9, that's a plea deal. If the Government agrees not to oppose bail pending sentencing, that's a concession and a plea deal.

Obviously, the two sides conferred and reached an agreement on what counts Madoff would plead guilty to. If, as Bloomberg reports, the Government wanted a plea to a conspiracy charge but agreed to forego it in exchange for Madoff pleading guilty to the other 11 charges, that's a concession and a plea deal.

It also seems there was an agreement (if only to disagree)on forfeiture. Madoff has agreed to plead guilty to the criminal forfeiture counts and the Government has agreed in return to let him dispute the amount of the forfeiture with the Judge having the final say.

If there really was no agreement, there would no Information, there would have been an Indictment. I wonder what else they agreed to in their non-agreement?

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Madoff and Bail Pending Sentencing | 11 comments (11 topical)

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It doesn't add up. (5.00 / 1) (#1)
by Bourges on Wed Mar 11, 2009 at 07:04:19 PM EST

I agree. Even if Madoff is giving up in the literal sense of the word, why wouldn't he want every last minute he could muster in his own home? How does this help his employees who many think must have been complicit in this scheme?

re (5.00 / 1) (#10)
by Bemused on Thu Mar 12, 2009 at 07:15:40 AM EST

In a manner of speaking that is a "deal," but it's likely that the government simply recognized that no "carrot" it could realistically offer Madoff would suffice to compel his cooperation. In the absence of terms which would give Madoff either a practical possibility of not serving the remainder of his life (and the man's 70 years old) what could the government possibly offer him without provoking mass outrage which would make him decide to cooperate fully? Why either take others down or voluntarily disclose and surrender assets if any benefit is entirely illusory. At 70 years old there is no practical difference between a 150 year sentence and a 30 year sentence.

Given the circumstances here, if the government were to allow Madoff to enter a plea only to charges which tied the judge's hand by establishing a maximum potential penalty which made it likely he would be eligible for release under the terms of the sentence itself, the criticism would be overwhelming even if the government could claim the deal allowed it to prosecute others successfully or uncovered assets which could provide partial restitution. there is also the requirement that the court accept any plea agreement and it's possible neither side thinks the judge would accept a plea agreement to only a couple of the lesser charges based on finding such a deal does not adequately reflect the nature and seriousness of the criminal conduct.

As for not filing a memorandum of law in favor continued release pending sentencing, it might be simply recognizing that filing paper that tells a court what it already knows about the law and restates the obvious with regard to the specific facts of the case serves no real purpose. Make the motion orally at the conclusion of the hearing and you are in the same boat as if you filed a thirty page memo with a superfluous and verbose version of the grounds in favor of release.

Isn't Bail a Given under 18 U.S.C. § 3143(a)? (none / 0) (#2)
by Michael Masinter on Wed Mar 11, 2009 at 07:37:36 PM EST

The judge has already found Madoff is not likely to flee; wouldn't he have to find differently to deny bail pending sentencing per 18 U.S.C. § 3143(a)?

no, the burden of proof changes (none / 0) (#6)
by Jeralyn on Wed Mar 11, 2009 at 08:21:30 PM EST

Before guilt is established via plea or jury verdict, there is a presumption in favor of bail. After plea or verdict, there is a presumption the person should be detained. It is 3143 (a) as you say:

Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and who is awaiting imposition or execution of sentence, other than a person for whom the applicable guideline promulgated pursuant to 28 U.S.C. 994 does not recommend a term of imprisonment, be detained, unless the judicial officer finds by 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). If the judicial officer makes such a finding, such judicial officer shall order the release of the person in accordance with section 3142 (b) or (c).

Also, the issue of whether he presents a danger because of economic harm he might cause takes a greater role after plea or verdict. At least that's what Madoff's judge said when denying the Government's motion to revoke bond when he and his wife transferred some jewelry a few months ago.

And, the potential sentence he is facing, in this case, up to life, is more of a reality after a plea. Many judges will find that gives a person a greater incentive to flee.


: You're right (none / 0) (#9)
by Michael Masinter on Wed Mar 11, 2009 at 09:27:41 PM EST

The burden shifts, but the standard is the same, and the judge has twice found that he is no threat to flee. To be sure the long sentence is a factor, but so is Ira Sorkin, who seems to have done a masterful job as defense counsel, and I mean that in the best sense, with no hint of snark. Recognizing that you cannot hope to win, that you have few options with which to work, but that if you can persuade your client to cooperate, you can parlay that cooperation (up to a point) and willingness to acknowledge responsibility into months of freedom that would otherwise be lost, and then sell it to both your client and the government may not make the casebooks, but it is excellent lawyering.

Madoff Backed Out . . . (none / 0) (#3)
by Doc Rock on Wed Mar 11, 2009 at 07:50:46 PM EST

. . . apparently, the bone for Madoff was not to name his co-conspirators, which the prosecutors refused to agree to?

: I think the article is saying (5.00 / 1) (#8)
by Jeralyn on Wed Mar 11, 2009 at 08:34:08 PM EST

There are no sentencing concessions because Madoff wouldn't agree to a conspiracy count. So the Government and Madoff agreed instead they would drop the demand for a plea to a conspiracy count and he could plead straight up to the other charges without a promise of a sentence reduction.
There's still a deal...he gets to plead guilty to 11 instead of 12 counts. He just takes his chances at sentencing.
Also, the Government is recommending he get the 3 points off for acceptance of responsibility and for pleading early.
That's my take. My only point is this is a plea deal, it's just not a plea deal with a sentence concession. If Madoff had backed out of an earlier promise, they would have charged him in an Indictment.

A question (none / 0) (#4)
by lentinel on Wed Mar 11, 2009 at 08:12:03 PM EST

Is there any way that it could be justified to let this guy out on bail?
It just feels corrupt. It makes me question if someone got paid off.
We're talking a lot of money here. Millions. Billions.

He probably won't do it... but if I were he, out on bail and facing a jail sentence from now on... and I had hundreds on millions in cash.. I might consider trying to flee the country - heading to a place with no extradition treaty and where the locals can be easily paid off.

Sure, the purpose of bail is not to punish (none / 0) (#7)
by Jeralyn on Wed Mar 11, 2009 at 08:24:20 PM EST

but to secure one's appearance at further proceedings. If the person is neither a flight risk nor a danger to the community, they can get bail not only pending sentencing, but until the date for surrender to a specific institution is set by the Bureau of Prisons. That takes weeks after sentencing.

Also, Judges can delay the start of the sentence for any number of reasons...if someone's wife is having a baby or they need to get a medical procedure are common.


: Considering the extreme level of fraud (none / 0) (#11)
by Inspector Gadget on Thu Mar 12, 2009 at 10:56:32 AM EST

this man is, would you be surprised if he gets bail and then fakes his own death?

Once convicted, can Madoff (none / 0) (#5)
by ding7777 on Wed Mar 11, 2009 at 08:19:47 PM EST

litigate the "waiver" for years while on bail?

defendants who sign such waivers who are later convicted have been known to claim the waiver was obtained without sufficient information or was sought for conflicts that can't be waived, potentially leading to "a litigation issue in the future,