Former Enron CEO Jeff Skilling filed a motion for bail pending appeal earlier in the week (download a copy here; Carrie Johnson’s WaPo article on the motion is here) and, in so doing, previews the major issues that he will emphasize in his upcoming appeal of his conviction on conspiracy, securities fraud and insider trading charges: the “deliberate ignorance” jury instruction; the Task Force’s application of the “deprivation of honest services” theory upon which most of the conviction is based; failure to transfer the venue of the trial and related jury bias issues; and the Task Force’s prosecutorial misconduct, particularly in effectively precluding witnesses with exculpatory testimony for Skilling from testifying during the trial by threatening those witnesses with prosecution if they were to do so. The motion is compelling, and its introduction sums up Skilling’s position well:
Jeff Skilling should remain on bail pending appeal. He presents no flight risk, nor is he a threat to society; his appeal is not being pursued to delay; and his appeal will raise substantial issues of law that, if resolved in his favor, will likely result in the reversal of his convictions. See 18 U.S.C. ß 3143(b) (elements defendant must establish to obtain bail pending appeal); United States v. Clark, 917 F.2d 177, 179 (5th Cir. 1990) (same). Only the last of these elements should be in dispute, and Skilling satisfies them. His appeal challenges all the counts of conviction and presents enough of a ìclose,î or ìsubstantial,î question to warrant bail pending its resolution. United States v. Valera-Elizondo, 761 F.2d 1020, 1024 (5th Cir. 1985).
One of the strongest arguments Skilling will have on appeal is that a ìdeliberate ignoranceî instruction should not have been given in this case. Whether to give such an instruction always presents a ìclose question.î United States v. Tunick, No. S3 98 CR 1238 (SAS), 2001 U.S. Dist Lexis 2911, at *8 n.5 (S.D.N.Y. Mar. 22, 2001). The question was especially close here for at least four reasons:ï Such instructions are disfavored, see United States v. Ojebode, 957 F.2d 1218, 1229 (5th Cir. 1992);
ï Skilling never asserted an ìostrichî defense, a usual prerequisite to issuing the instruction, see United States v. Lara-Velasquez, 919 F.2d 946, 951 (5th Cir. 1990);
ï Skilling never purposefully blinded himself to any allegedly criminal facts, another prerequisite, see United States v. Posada-Rios, 158 F.3d 832, 875 (5th Cir. 1998); and,
ï Finally, the Task Force all but conceded that the instruction should apply only to Lay, yet the Court refused to give an instruction informing the jury that the deliberate ignorance theory could apply only to one, and not to both, defendants, cf. 2001 Fifth Circuit Criminal Jury Instruction 1.37 (approving such clarification; citing United States v. Reissig, 186 F.3d 617 (5th Cir. 1999)).
