Tuesday, March 15, 2005
After deliberating over eight days, the jury found Bernie Ebbers guilty on all counts this afternoon. Ebbers was charged with conspiracy, securities fraud, and seven counts of false filings with the SEC. Judge Barbara Jones set sentencing for June 13. Because everyone looks ahead to the next step, two things that will be discussed are grounds for an appeal and the potential sentence. One issue that is likely to be raised is the presence of the supplemental counts that the judge did not strike from the indictment after the Booker decision made those factual issues that relate to sentencing irrelevant for jury consideration (see earlier post here). The defense moved for a mistrial when the jury asked the court whether they had to agree unanimously on those and the judge said they need not be considered. That type of information in an indictment will be argued to have been prejudicial, and there's no question the jury considered the allegations. Another issue mentioned in the press accounts concerned the government's refusal to grant immunity to witnesses the defense wanted to call, including WorldCom's former president, who indicated he would assert his Fifth Amendment privilege if he did not receive immunity. Claims of this type are very difficult to win, but the defense will likely argue that, combined with other evidentiary errors, the judge's rulings were prejudicial.
For sentencing, Booker has thrown a shroud of uncertainty around the sentence. The Guidelines range will likely be quite significant because of the amount of loss caused by the fraud, and adding in possible enhancements for leadership role and obstruction of justice (if the Judge determines Ebbers was untruthful in his testimony) will would make for an even longer term of imprisonment if the Guidelines are applied strictly. Whether (and how closely) the Judge follows the Guidelines, and whether she can be persuaded to give a downward departure if she does, can't be predicted at this point. In an earlier high profile case involving an extortion of Bill Cosby by his daughter Autumn Jackson (her conviction was ultimately reversed), Judge Jones sentenced Jackson to 26 months while the Guidelines range was 57-71 months. (See article here). An AP story here discusses the jury's verdict. (ph)