Ebbers Conviction Upheld

The Second Circuit Court of Appeals upheld the conviction of Bernard J. Ebbers, the former CEO of WorldCom. Ebbers argued four basic issues on appeal: defense witness immunity, the giving of a conscious avoidance instruction, the failure to require to prove violations of GAAP, and the sentence.

The court rules that "[t]he government is under no obligation to grant use immunity to witnesses the defense designates as potentially helpful to its cause but who invoke the Fifth Amendment if not immunized." Although the court recognizes that prosecutor's have a "powerful tool," it will take the defendant showing "that the government has used immunity in a discriminatory way" and "that the evidence to be given by an immunized witness 'will be material, exculpatory and not cumulative and is not obtainable from any other source.'"  The court places the burden on the defendant to show that "the non-immunized witness's testimony would materially alter the total mix of evidence before the jury."  The court also held it was not error to deny a missing witness instruction here.

The mens rea required to be proved by the government would not be undermined by the giving of a conscious avoidance instruction or the failure to require to prove violations of GAAP.

Finally the court upheld the 25 year jail sentence Ebbers received. The court upheld the loss calculation, found that there was a basis for the sentencing disparity between Ebbers sentence and CFO Scott Sullivan.  The court admits that the sentence is "harsh but not unreasonable."

Although the decision does specify that Ebbers was a Category I with respect to criminal history, the court does not dwell on the fact that Ebbers is a first offender who in a white collar case is receiving a 25 year sentence.  The court does state, "[t]wenty-five years is a long sentence for a white collar crime, longer than the sentences routinely imposed by many states for violent crimes, including murder, or other serious crimes such as serial child molestation."  Basically it comes down to - this is what Congress wants, this is what Congress gets. The court finds that the sentence for Ebbers was not unreasonable. 

Decision can be found via Wall Street Jrl website here.

Check out Analysis of Harlan J. Protass - Second Circuit Sentencing Blog here - where he states -"Is 'reasonableness' an objective or subjective standard?  Which should it be?"

(esp)