Saturday, March 7, 2009

Will Madoff Enter a Guilty Plea

News reports are indicating that an Information may be filed in the Bernie Madoff matter.  This clearly sends a message that a guilty plea may be forthcoming in this case.  Using an Information, as opposed to Indictment, allows the parties to negotiate the charges that will be brought.  In most cases the individual will be pleading guilty to the charges in the Information. An Information is brought by a prosecutor, the United States Attorney or AUSA, as opposed to the grand jury bringing the charges via an Indictment. Limiting the charges to those explicitly set forth in the Information can control the terms between the parties, including having an influence on what sentence will be issued by the court.  The court cannot give a sentence in excess of what crimes an individual pleads guilty to, although uncharged conduct can influence a sentence within the confines of the maximum set for the crime by the statute.

There have been several indications of a plea prior to the filing of the notice of an intent to file an Information.  First, is the fact that the time period for filing the Indictment was extended by the parties.  Second, the government did not initially push very hard to keep Madoff incarcerated (although they did request this in a later hearing). Third, information about the case seemed to be coming from the defense in the initial paperwork, which would indicate that he has been cooperative with the government.  If facing sentencing, cooperation could serve to reduce the amount of time he might serve. More importantly, working with the government may be crucial to someone who wants to protect family members.

If Madoff is cooperating, are we about to see the curtain lifted on all kinds of fraudulent activity, or will this be a case where we find a wizard standing behind the curtain all by himself?

See Walter Hamilton, LATimes,  Prosecutors indicate Bernard Madoff plea deal may be in works; Adam Goldman, Newsday (AP), Madoff investors prepare for court confrontation; CNBC, Madoff Guilty Plea?; Grant McCool & Martha Graybow, Reuters, Madoff expected to plead guilty to fraud charges; Larry Neumeister, Business Week, Investors could get say at Madoff plea hearing; Peter Henning, Dealbook, NYTimes, Can Ruth Madoff Keep the Penthouse?; Tom Hays & Larry Neumeister, Law.com (AP), Doubt Cast on $50 Billion Figure in Madoff Case.

(esp)

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