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Jeff Skilling's Motion to the Fifth Circuit Court of Appeals for Release Pending Retrial

Jeff Skilling's Motion to the Fifth Circuit Court of Appeals for Release Pending Retrial

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Published by Tom Kirkendall
Jeff Skilling's Motion to the Fifth Circuit Court of Appeals for Release Pending Retrial on Various Business Fraud Charges
Jeff Skilling's Motion to the Fifth Circuit Court of Appeals for Release Pending Retrial on Various Business Fraud Charges

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Published by: Tom Kirkendall on Aug 04, 2010
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11/20/2012

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06-20885
 UNITED STATES COURT OF APPEALSFOR THE FIFTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,v.
JEFFREY K. SKILLING
 , Defendant-Appellant 
.
 JEFFREY K. SKILLING’S MOTION FOR RELEASEON BAIL PENDING FURTHER PROCEEDINGS ONREMAND FROM THE U.S. SUPREME COURTOn Appeal From The United States District CourtFor The Southern District Of Texas, Houston DivisionCrim. No. H-04-25 (Lake, J.)
O’MELVENY & MYERS LLPW
ALTER
D
ELLINGER
 J
ONATHAN
D.
 
H
ACKER
 S
RI
S
RINIVASAN
 1625 Eye Street, N.W.Washington, D.C. 20006R
ONALD
G.
 
W
OODS
 5300 Memorial, Suite 1000Houston, Texas 77007O’MELVENY & MYERS LLPD
ANIEL
M.
 
P
ETROCELLI
M.
 
R
ANDALL
O
PPENHEIMER
 M
ATTHEW
T.
 
K
LINE
 D
AVID
J.
 
M
ARROSO
 1999 Avenue of the Stars, 7th FloorLos Angeles, California 90067Telephone: (310) 553-6700Facsimile: (310) 246-6779
ATTORNEYS FOR DEFENDANT-APPELLANT JEFFREY K. SKILLING
Case: 06-20885 Document: 00511188299 Page: 1 Date Filed: 07/28/2010
 
 
INTRODUCTION
 Jeffrey Skilling should immediately be released on bail pending this Court’sruling on his case on remand from the U.S. Supreme Court. The questionpresented on remand is whether the government can carry its heavy burden of excluding beyond a reasonable doubt any possibility that, for the 19 counts of conviction, the jury relied on the legally flawed “honest services” theory thegovernment urged the jury to accept. To state the question is to answer it. Giventhe standards governing applications for bail pending appeal, and given the courts’previous rulings on this issue, the government has no meritorious basis foropposing bail pending resolution of this remand proceeding.
 
The district court six consecutive times found that Skilling is not a flightrisk and is not a danger to the community—and thus he satisfies the firstof two criteria for seeking bail. The district court made these rulingsbefore and after Skilling was tried, convicted, and sentenced to 24 yearsin prison, and the district court’s assessments have always been borne outby Skilling’s conduct. Despite his virtual life sentence, Skilling reportedto federal prison in December 2006 without incident and has served the44 months since with dignity and a good prison record.
 
It is equally clear that Skilling satisfies the second part of the bail test—whether he has presented a “substantial question” on appeal that impacts
Case: 06-20885 Document: 00511188299 Page: 2 Date Filed: 07/28/2010
 
 2
his incarceration.
U.S. v. Valera-Elizondo
, 761 F.2d 1020, 1024 (5th Cir.1985). After the Supreme Court’s unanimous invalidation of the honest-services fraud theory the government vigorously pursued against Skillingat trial, the burden is now on
the government 
to prove beyond areasonable doubt that the jury did not rely on the theory to convict him.There is
at least 
a “substantial question” whether the government will beable to carry that burden, given the record it made at trial when itbelieved—
erroneously
—that mere “fiduciary breaches” and poorbusiness decisions sufficed to establish honest-services fraud. JudgeHigginbotham ruled in December 2006, on Skilling’s previous bailapplication, that if the “honest services” theory underlying Skilling’sconviction were held to be invalid, then 14 of Skilling’s 19 counts of conviction would suffer from “serious frailties.” Order,
U.S. v. Skilling
,No. 06-20885 (5th Cir. Dec. 12, 2006). The Supreme Court’s unanimousruling that the honest-services theory pursued against Skilling wasinvalid cements this conclusion—and on these 14 counts, there can be noserious doubt that Skilling has raised a “substantial question” forpurposes of showing an entitlement to bail.
 
As to the five remaining counts of false statements to auditors (“FSA”)on which Skilling was convicted—and on which Judge Higginbotham
Case: 06-20885 Document: 00511188299 Page: 3 Date Filed: 07/28/2010

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