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)).

Courts in three recent, white-collar cases (one involving WorldCom CEO Bernie Ebbers) released defendants pending appeal based solely on a disputed deliberate ignorance instruction. See United States v. Kaplan, No. 02 CR. 883 (DAB), 2005 WL 3148060, at *1-2 (S.D.N.Y. Nov. 22, 2005); United States v. Ebbers, No. S4 02 Cr. 1144 (BSJ) (S.D.N.Y. Sept. 7, 2005) (attached as Ex. 1); Tunick, 2001 U.S. Dist Lexis 2911, at *8-10. In granting bail pending appeal, these courts did not endorse defendantsí arguments and, in fact, the court in Ebbers stated its strong disagreement with Ebbersí claim that it had erred. See Ebbers, No. S4 02 Cr. 1144 (BSJ) at 4. Importantly, however, these courts recognized that ìbail pending appeal is not conditioned on the [District] Courtís ëfinding that its own judgment is likely to be reversed on appeal.íî Id. As is the rule in the Fifth Circuit, for bail to be warranted, the appeal must only present a ìsubstantial questionî that likely impacts all the counts of conviction. Id.; see also United States v. Valera-Elizondo, 761 F.2d 1020, 1022 (5th Cir. 1985).
As in Ebbers, Kaplan, and Tunick, this Court need only look at this one appellate issueó deliberate ignoranceóto find a substantial question exists and to grant Skillingís motion. This instruction applied to all the counts, it was argued by the Task Force in closing, and if it were improperly given, then reversal of all of Skillingís counts of conviction is likely. Here, we submit, is where the Courtís inquiry on this bail motion may begin and end.
If the Court is not convinced that this one appellate argument warrants granting bail pending appeal, other ìsubstantial questionsî exist. For example:

ï Jury bias impacted every count of the verdict. If the appellate courts apply the correct, current, more nuanced tests to measure prejudice, reversal is likely.
ï Moreover, this case, like no other recent case of note, tests the boundaries of prosecutorsí discovery obligations and defense access to witnesses. The Task Forceís approach to discovery, witnesses access, and the trial should be grounds for reversal, if not outright dismissal, as recent developments, especially in the KPMG case, establish.

Separately, but especially together, these various appellate issues warrant granting Skilling bailvpending appeal. Again, we do not expect the Court to ìcertifyî that Skillingís convictionsvshould be reversed. United States v. Randell, 761 F.2d 122, 125 (2d Cir. 1985). That is not the standard. The Court need only find that the appeal is not taken for delay and the issues raised are substantial, and, if decided in Skillingís favor, likely will result in a reversal. See id.
Skilling meets this test and exceeds it. Given its track record on appeal, the Task Force will be hard pressed to argue otherwise. Appellate courts have tested two sets of convictions the Task Force secured at trial. The Supreme Court unanimously reversed the first conviction in the Arthur Andersen case. It did so because the Task Force, as here, successfully argued for mens rea instructions that allowed the jury to convict the firm for conduct that arguably was innocent, or at worst negligent. See Arthur Andersen LLP v. United States, 544 U.S. 696, 704-06 (2005). Courts in the Fifth Circuit have made clear that an improperly given deliberate ignorance instruction poses this precise risk: ì[T]he deliberate ignorance instruction poses the risk that a jury might convict the defendant on a lesser negligence standardóthe defendant should have been aware of the illegal conduct.î Lara-Velasquez, 919 F.2d at 951 (italics added). This risk was realized in this case, and was only compounded by the Courtís refusals to (a) sever Skillingís and Layís trials, and (b) give an instruction, to which the Task Force had agreed, that the deliberate ignorance theory may not apply to both defendants, but only one.
The Task Forceís second appellate reversal further compels the relief Skilling seeks. In United States v. Brown, 459 F.3d 509, 522-23, 524 (5th Cir. 2006) (en banc petition pending), the Fifth Circuit reversed each of defendantsí conspiracy convictions either for insufficient evidence or because the Task Forceís conspiracy charge was premised on an overly expansive and improper theory of ìhonest servicesî wire fraud. Over defendantsí objections, that same honest services theory of wire fraud conspiracy was charged and instructed in this case. The Task Force relied heavily on this improper theory in cross-examining Skilling and in its closing argument to the jury. In light of Brown, Skillingís Count One conspiracy conviction cannot stand. In addition, because the conspiracy count was the foundation of the Task Forceís case, Brown will likely require the reversal of every count on which Skilling was convicted. For example, Pinkerton instructions were given on the securities fraud counts (Counts 2, 14, 16-20, and 22-26), tying the faulty conspiracy charge to these substantive offenses. Similarly, the Task Force said both before and during trial that the conspiracy was the inside information on which Skilling traded, thereby linking the erroneous Count One to the insider trading conviction in Count 51.
Given the presence of so many appellate issues, granting Skilling bail pending appeal is appropriate.