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July 16, 2004

Martha is getting Blakelyized, while Olis isn't

Interestingly, Martha Stewart, according to this story, is going to be free pending appeal because of Blakely. Judge Cedarbaum apparently told Stewart:

In view of the turmoil resulting from the Supreme Court's decision in Blakely v. Washington, I grant your application for a stay of sentence pending appeal.

Meanwhile, according to this story, US District Judge Sim Lake denied a request by former Dynegy Inc. finance executive Jamie Olis -- who I believe has just recently started serving his severe 24-year term for a fraud calculated to have resulted in a huge financial loss -- to be freed from prison pending an appeal of his November conviction.

Though I am not intimately familiar with either case, my first reaction is that Olis generally has a much, much stronger Blakely claim on the facts. But, of course, as of this writing the guidelines are still in force in the Fifth Circuit while everything is still up from grabs in the Second Circuit while we wait for the Justice to speak about the certified questions. Plus, though I am really not an expert on these issues, I think different considerations come into play when the question is freeing someone already incarcerated, as opposed to allowing someone to remain free. Thoughts?

July 16, 2004 at 06:10 PM | Permalink


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Well, over at Life, Law & Libido, they have posted "the statute" (as we like to call it around chambers)
And 18 U.S.C. s. 3143(b), release pending appeal, requires a finding (by the district judge) that the appeal is "likely to result in (i) reversal (ii) an order for a new trial (iii) a sentence that does not include a term of imprisonment, or (iv) [time served]."
Release is not permitted for those convicted of a crime of violence (which in the federal system includes just about every crime under the sun), a crime where the max (possible) sentence is life, or a drug crime where the max is 10 years, or the defendant is a repeat offender.

I'm shocked that Judge Cedarbaum can flatly say that Blakely does not apply, and then say that Martha's appeal is LIKELY to result in one of the aforementioned outcomes.

On your question of freeing someone already incarcerated, I don't know that there's a _legal_ basis to distinguish them -- the statutory formula is the same (unless one is subject to mandatory detention), but it's pretty hard for a judge to say "well, once before we thought that you were a flight risk or danger to the community, that's why we detained you, and now--after you've been sentenced--we don't." I cannot think of a time where a judge would release someone incarcerated pre-sentence.

Posted by: District Clerk Battling Blakely | Jul 16, 2004 6:37:51 PM

Quaint, it seems to me to conceive of this as a statutory issue rather than a political issue. It’s not about the statute it’s about the politics of freeing someone. A physicist might imagine staying out and getting out like phase change points. Moving water that few degrees between –1 and 1 or between 99 and 101 takes a lot more energy than anywhere else in the otherwise linear progression of the energy /temperature graph. And just as it takes a lot of energy to put someone in—it takes a lot of guts to let someone out. And so, In and Out tend to be fairly static categories. Martha stays out, no big deal, but let deserving Jamie Olis out and you can bet on a front-page ‘system in turmoil’ piece in the Houston Chronicle. Besides, even with his sentence cut, which it absolutely should be and likely will be, Olis’ll still have some time left to do.

Posted by: David Feige | Jul 16, 2004 7:36:57 PM

Forget what the Judge stated for the record. If she did not grant Martha release pending appeal, Martha would have served her term of imprisonment by the time her appeal got decided. I'm sure that the Judge was well aware of that. In the other case mentioned, the person would likely still have time to serve anyway, regardless of how Blakely & the federal sentencing guidelines finally play out.

Posted by: Tom Lincoln | Jul 16, 2004 8:19:56 PM

DCBB: You say, "I'm shocked that Judge Cedarbaum can flatly say that Blakely does not apply, and then say that Martha's appeal is LIKELY to result in one of the aforementioned outcomes." I believe you're misconstruing the use of the word "likely" in the statute. Under sec 3143, release pending appeal is permitted upon a showing that the appeal presents a "substantial question." A substantial question under section 3143(b) is one that is "fairly debatable" or "one of more substance than would be necessary to a finding that it was not frivolous." United States v. Handy, 761 F.2d 1279, 1283 (9th Cir.1985). The "likely to result in reversal ..." aspect of the standard describes the type of question presented by appeal, not the likelihood of actual success. The substantial question to be raised on appeal must be one which, if successful, will "likley," result in a new trial, shorter sentence, etc. For instance, a substantial question regarding the amount of restitution or a substantial question which would result in a shorter sentence, but not "less than the total of them time already served plus the expected duration of the appeal process", would not entitle the defendant to release pending appeal.

Accordingly, there's nothing inconsistent with a district judge rejecting an argument, but nevertheless concluding that it presents a "substantial question which, if successful, is likely to result in a new trial, shorter sentence, etc.

Posted by: J. Soglin | Jul 16, 2004 11:04:32 PM

Thanks for the legal clarification. From a pragmatic point, however, it is still difficult to get a district court to say "it's a close enough call that I might be wrong, and that close call is substantial enough to warrant release pending appeal." Those instances would certainly be rare, and I suppose the "I don't think Blakely applies, but it may" scenario may be one of them. See, e.g., United States v. Austin, 614 F. Supp. 1208 (D.N.M. 1986). I guess my point is that if this were just some random drug dealer appealing his sentence, the judge would not be so lenient. (The lower sentence and possibility that appeal might be foreclosed because she would have served her sentence before the appeals court could hear her appeal makes a difference too, I suppose.) Thanks again for the correction.

Posted by: District Clerk Battling Blakely | Jul 19, 2004 11:12:54 AM

I am the wife of an inmate.

My husband was sentenced to 24 months. No prior a model citizen well know and respected in the community. He had numerous letters of support sent to the sentencing Judge. Over a dozen members of the community were present at the sentencing as well our parish priest who made an appeal on my husband’s behalf for leniency.

We were told after the sentence by the prosecutor had it not been for "mandatory guidelines" and the Judge having his hands tied there would have diffidently been a lesser sentence, but as federal guidelines dictate he did receive the lowest possible sentence for his offense. The prosecutor and FBI agent who worked the investigation were both very moved and upset that such a mandatory sentence had to be issued.

My husband is a diagnosed pathological gambler who created fraudulent loans to support a gambling addiction. He has been incarcerated for 13 months and has 8 to go.

How can or do I do anything to have his sentence looked at regarding the Blakely issue. We are in the Fifth Circuit were the guidelines are still in force.

It would have been much better for him to be sentenced to house arrest and community service. Pay back to the community by offering education on gambling addictions, working with gamblers anonymous. This is such a devastating illness little recognized but on the rise.

By the way how do they pass time while incarcerated? Gambling!!!!!!!!!!!!

Posted by: Judy Seymour | Jul 19, 2004 3:09:03 PM

i am an adjunct professor and a defense attorney. in my view martha has no blakely issue because she was convicted by a jury of obstruction of justice and the base offense level for that offense (when she committed it) was 12. she got a level 12, low end, with a split sentence. where's the blakely issue?

Posted by: jim felman | Jul 20, 2004 11:14:35 AM

Jim -- the issue is if Blakely applies to the Guidelines, and the Guidelines are not severable, and thus constitutionally infirm, then the district judge may have discretion to sentence Martha to any sentence as provided by the statute (which may include probation). Although I'm not convinced the Supreme Court would find as such (see Scalia's discussion of waiver in the Blakely opinion) a judge wishing to allow Martha to remain free on bond pending appeal could satisfy the statutory requirements with that hypothetical (see J. Soglin's post re: the legal standard).

Posted by: District Clerk Battling Blakely | Jul 20, 2004 11:52:51 AM

I guess my point is that if this were just some random drug dealer appealing his sentence, the judge would not be so lenient.

Posted by: Robe de Soirée 2013 | Dec 12, 2012 10:51:05 PM

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