Surprising news from the federal courthouse in Alexandria, Virginia. William Jefferson, left, is free pending appeal of his conviction in August on 11 corruption counts. Last week U.S. District Court Judge T.S. Ellis III sentenced him to 13 years in prison. But the judged ruled on Wednesday that the former congressman can remain free during his appeal, which will likely take at least a year.
The Times Picayune said Judge Ellis didn't expect to be reversed on appeal. But he said "a key element of the case, whether Jefferson's effort to influence African leaders on behalf of business officials in return for payments and promised payments constituted official acts, had not been tested in the appellate courts." Jefferson has argued he was acting as a private citizen and not in his official capacity as a member of congress.
Judge Ellis also said he regretted not making the jury's verdict form more specific. Jefferson was acquitted on Count 11 of the indictment -- the only substantive Foreign Corrupt Practices Act charge he faced. But the jury convicted him on Count 1. It alleged three separate illegal conspiracies -- to solicit bribes, deprive citizens of honest services, and violate the FCPA. The verdict form didn't require the jury to specify which of the three illegal conspiracies it believed he engaged in. So Jefferson's conviction on Count 1 may or may not have included a finding that he conspired to violate the FCPA. See our post "Toss Jefferson's FCPA Conspiracy Count" here.
Meanwhile, Frederic Bourke is also free. He was allowed bail of $10 million until the Second Circuit decides his appeal -- probably in 12 to 15 months. He was convicted in July in federal court in Manhattan of conspiracy to violate the FCPA and lying to federal investigators.
Why are Bourke and Jefferson free while they appeal? Although their cases are very different, all decisions about release pending appeal are governed by 18 U.S.C. § 3143(b) here. The law requires jail unless the judge finds by clear and convincing evidence that the defendant isn't likely to flee or pose a danger to the community, didn't appeal for purposes of delay, and the appeal raises a "substantial question of law or fact likely to result" in reversal, a new trial, a sentence without jail time, or a reduced sentence that is less than time served plus the expected duration of the appeal.
Bourke's lawyers nicely described the application of the judicial guidelines in their October 16, 2009 memo supporting his release here. They said:
The government concedes that Bourke is not a danger to the community; it grudgingly acknowledges that he does not pose "a serious risk of flight,"and it tacitly accepts (by not addressing the point) that his appeal "is not for the purpose of delay." Thus, the government focuses, as it should, on whether Bourke's appeal raises a substantial question of law or fact likely to result in reversal or a new trial or, if Count One [conspiracy to violate the FCPA] alone is reversed, a sentence on Count Three [misstatement] that either does not include imprisonment or includes a reduced sentence "to a term of imprisonment less than . . . the expected duration of the appeal process." 18 U.S.C. § 3143(b)(1)(B)(iii), (iv).
Both Bourke and Jefferson have met the test for release pending appeal by clear and convincing evidence.