James Brown — the only former Merrill Lynch executive who remains in prison after last week’s Fifth Circuit decision reversing and vacating the convictions of the four former Merrill Lynch executives in the Nigerian Barge case — appears to be on the verge of being released from prison pending further disposition of his appeal.

In a motion filed with the Fifth Circuit, Brown’s attorneys argue persuasively that the year that Brown has already served in prison in regard to his conviction on perjury and obstruction of justice charges — combined with the fact that substantial issues remain as to whether Brown’s conviction on those charges should stand (read Judge DeMoss’ dissent from the Fifth Circuit decision on that issue) — is more than enough to justify Brown’s release from prison pending further disposition of his appeal.

In a pleasant surprise, the Justice Department filed a short response to Brown’s motion not opposing Brown’s release. Inasmuch as it would be highly unusual for the Fifth Circuit not to grant such an unopposed motion under the circumstances, Brown should be released from prison shortly, perhaps as early as today.

Does the Justice Department’s response signal something?

After last week’s decision in the case, Ellen Podgor, among others, speculated that the DOJ might request that the Fifth Circuit conduct an en banc review of the panel’s decision. That’s certainly possible, but the DOJ should be careful what it asks for — my sense is that a good number of other Fifth Circuit judges would view the case much as DeMoss did.

If the DOJ is concerned that the panel’s decision is going to be dished up to them in virtually every deprivation of honest services case, then just think how often the DOJ would have to confront an en banc decision that adopts Judge DeMoss’ dissent as the majority view. As a result, although the DOJ may still request it, I would not be surprised if the DOJ passes on en banc review in this case.

Update: The Fifth Circuit has now issued an order directing Brown’s release. What a wonderful surprise for the Brown Family and hopefully the beginning of the end to a long nightmare and travesty of justice.

This Paul Davies/Wall Street Journal Weekend ($) article provides a profile of U.S. District Judge Lewis Kaplan, the judge who is at the center of the KPMG tax shelter case.
Judge Kaplan is quite a character, as reflected by his following response to one of the banes of federal judges — the wrong-number caller to the in-court conference speaker phone that is used by out-of-town attorneys to participate in hearings that do not necessitate their in-person appearance in court:

During one hearing, an outside caller was mistakenly connected to the courtroom telephone.

“Hello?” the caller said over the speaker phone.
Judge Kaplan deadpanned: “Punch one if you want to enter your credit card number.”