Friday, June 15, 2007

Libby Denied Bail Pending Appeal -- On to the D.C. Circuit

Not to anyone's great surprise, U.S. District Judge Reggie Walton rejected the request by I. Lewis Libby for bail pending appeal of his conviction on perjury, false statement, and obstruction of justice charges.  The Judge sentenced Libby to a thirty-month term of imprisonment on June 5, and invited both sides to submit briefs on the issue of whether to grant him bail while he appeals to the D.C. Circuit Court of Appeals.  In addition, a brief submitted by a group of law professors argued that the issue of Special Counsel Patrick Fitzgerald's constitutional authority was sufficiently close to warrant a grant of bail under 18 U.S.C. Sec. 3143(b)(1)(B).  While the general presumption is that the defendant begin serving the sentence while appealing, bail can be granted if, inter alia, the court finds that an issue "raises a substantial question of law or fact" that would result in reversal of the conviction.  In denying the defense request, Judge Walton determined that there were no "substantial" questions likely to result in reversal, and he was not overly impressed with the contribution of the law professors.

Under Federal Rule of Appellate Procedure 9, however, the district court is just a way station on this issue, not the final word.  Rule 9(b) (available here) allows a defendant to obtain a fairly quick review of a district court order denying release pending appeal by filing a notice of appeal or filing a motion with the circuit court, at which point the procedures of Rule 9(a) kick in.  That provision provides: "After reasonable notice to the appellee, the court of appeals must promptly determine the appeal on the basis of the papers, affidavits, and parts of the record that the parties present or the court requires. Unless the court so orders, briefs need not be filed."  The bail request is rarely the subject of oral argument, and the court of appeals or even a single judge on the court can order the defendant's release pending the disposition of the substantive appeal (see Rule 9(a)(3)).  This procedure means that a decision on whether to grant Libby bail could come quickly, before he is due to report to the Bureau of Prisons and well in advance of the filing of full briefs challenging the conviction.  Even if he is denied bail at this point and begins serving his sentence, the D.C. Circuit could order his release after the oral argument if it determines that there's a likelihood of reversal, which happened to defendants in the Enron Nigerian Barge prosecution.

The process is more of a summary one in which the court of appeals makes a preliminary assessment of the issues in deciding whether to allow a defendant to remain free until the conclusion of the appeal.  Rule 9 gives Libby at least one more bite at securing his freedom while the appeal is pending, and if granted by the D.C. Circuit he is likely to remain free for upwards of another year or so while his appeal wends its way through the appellate process.  Given the close proximity of the District and Circuit Courts in the District of Columbia, it's really just a short hop to seeking another hearing on the issue. (ph)

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Tracked on Jul 2, 2007 12:58:34 PM


All you say is correct, Peter, but I would add one more detail: I assume that Libby's counsel will now immediately file the notice of appeal from his conviction and sentence. They can then, as you discuss, promptly renew the motion for bail in the Circuit. If the assigned motions panel cannot complete the process and render its decision before the designated date for surrender for service of sentence -- although honestly, the whole bail process in an appeals court doesn't have to take more than ten days -- then a single judge can, with a stroke of the pen, extend the surrender date to allow the bail motion to be decided first. I've never had a motions panel in any circuit sit on a bail motion while the surrender date came and went.

Posted by: Peter G | Jun 16, 2007 12:20:36 PM

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