The decision to plead guilty made all but inevitable a change in residence for Bernard L. Madoff from a Park Avenue penthouse to the Metropolitan Correctional Center.
A unanimous panel of the 2nd U.S. Circuit Court of Appeals on Friday made work of Madoff's argument that his bail should be reinstated while he awaited sentencing, now scheduled for June 16, for orchestrating the largest Ponzi scheme in history.
The circuit affirmed Southern District Judge Denny Chin's decision to revoke Madoff's bail after his March 12 guilty plea.
The appeals court noted that the plea to 11 felonies had stripped Madoff of the presumption of innocence. That meant that Chin's decision would be evaluated against a "clear error" standard, requiring Madoff to offer clear and convincing evidence that Chin had abused his discretion.
Madoff did not meet that burden, the circuit concluded a day after holding oral arguments.
The circuit panel, in an unsigned three-page summary order, refused to second guess Chin's finding that Madoff, 70, who faces as much as 150 years in prison, would present a "risk of flight" if released -- even under strict home confinement -- because he had both an incentive and the means to flee.
The panel observed that "the defendant has a residence abroad [in southern France] and has had ample opportunity over a long period of time to secret substantial resources outside the country."
The appeal in United States v. Madoff, 09-1025-cr, was decided by Chief Judge Dennis Jacobs, and Judges Robert D. Sack and Richard C. Wesley.
Madoff's attorney, Ira Lee Sorkin of Dickstein Shapiro, said, "We are disappointed and respectfully disagree, but the court has ruled."
Yusill Scribner, a spokeswoman for the Southern District U.S. Attorney's Office, declined to comment.
Criminal defense attorney Ronald P. Fischetti said he and other federal practitioners questioned what Madoff gained from a guilty plea, given that he would have been able to remain free longer if he had continued to contest the charges.
"It's the first time I've seen a guilty plea to an information," he said. "It's really strange."
Another attorney commented, "Even if the prosecution got angry at being strung along, what would they do -- try to get a few more years on the sentence? It won't make any difference to Mr. Madoff who faces an effective life sentence."
Fischetti added that once the presumption of innocence was gone, Sorkin "had no chance -- it was a fruitless exercise."
Charles A. Stillman of Stillman, Friedman & Shechtman said that, with Madoff facing an "effective" life sentence, "it was certain that the day he pleaded guilty was his last day of freedom."
However, with no hope of beating the charges, Madoff may simply have wanted to spare himself and his family from a prolonged legal ordeal.
"The longer the public lashing goes on, the worse it is for everybody else in the family," said Stillman.
Frederick Hafetz of Hafetz & Nechles said that from the outset Madoff had to understand that "he was facing horrendous [sentencing] guidelines."
Among the factors the courts consider in sentencing are the amount of money involved, the number of victims, and the sophistication and length of the scheme. Madoff scores high on all counts.
Going forward, Madoff will certainly get a sentence that will keep him in prison for the rest of his life -- 30 to 40 years, Fischetti said.
Robert G. Morvillo of Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer said Sorkin's task now is to explain "what happened and how it happened in a way to attempt to diminish the severity of the situation as it has been depicted in the press."
However, one lawyer said that Sorkin "would have to be Merlin the magician" to get Madoff a sentence that allows him eventually to emerge from prison.
Until he is sentenced, Madoff will be confined at the Metropolitan Correctional Center, where all the cells are built to house two prisoners in bunk beds. The cells are 7 1/2 by 8 feet. The day for prisoners, all of whom are required to wear khaki uniforms, begins at 6 a.m. and lights go out at 11 p.m., according to Scott Sussman, a spokesman for the U.S. Bureau of Prisons.
Several lawyers said it is likely that Madoff will be housed in administrative segregation to protect him from other inmates. If so, he would be confined in his cell for 23 hours a day and have no reading materials, television or radio, they said.
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