Why Bernard Madoff Is Still Free

As to revoking bond, once granted, the test is:

Thus, under the Bail Reform Act, the Government must first establish by a preponderance of the evidence that the new circumstances presented in this application demonstrate that there is a serious risk that Madoff will flee or that there is a serious risk that he will obstruct or attempt to obstruct justice.

The Government alleged these factors:

1) the scope and nature of the alleged crime; 2) the attendant probability that the applicable Sentencing Guidelines in the circumstance of a conviction will likely result in an advisory range at the top of the Guidelines; 3) the fact that Madoff has assets that cannot be effectively restrained; 4) the severance of Madoff’s ties to New York to such an extent that only his wife and brother are willing to sign his bond; and 5) finally, Madoff’s recent act of distributing valuable personal property to third parties.

The Court says 1, 2 and 4 are not new factors, and 3 and 5 are part of the same argument. It reminds the Government that the issue is not whether there is any risk of flight at all:

The Act does not require that the risk be zero, but that conditions imposed “reasonably assure” appearance. The Government points to the unprecedented nature of the charges in this case. However, the conditions imposed for release are unique in their own right, and appear reasonably calculated to assure Madoff’s appearance when required.

...Given that the Government 1) has conceded that the flight risk has been “substantially diminished” with the current conditions of release and 2) is constrained to the mere contention that the flight risk is not “zero,” this Court finds that the Government has failed to carry its burden of showing by a preponderance of the evidence that Madoff presents a serious risk of flight. (Tr. at 22.)

The Court then addresses the obstruction of justice argument.

The question of whether Madoff’s distribution of assets, whether characterized as “sentimental effects” (Def. Opp. at 10) or “$1 million worth of valuable property” (Gov. Mem. at 8), constitutes a serious risk of obstruction of justice is a threshold question in the inquiry in this matter. The Bail Reform Act “does not permit detention on the basis of dangerousness in the absence of risk of flight . . . [or] obstruction of justice . . . .” United States v. Friedman, 837 F.2d 48, 49 (2d Cir. 1988).

While the Parties’ positions each seem to have some merit with respect to the definition of “obstruction,” what constitutes obstruction only propels the Government halfway to its objective. The question is not simply whether Madoff’s actions can be considered obstruction, but whether there is a serious risk of obstruction in the future. The statute, by its nature, is always looking forward.

In other words,

While substantial questions remain as to whether the Government has met its burden of showing that Madoff poses a serious risk of obstruction of justice, the Court does not find it necessary to resolve this issue in order to decide the Government’s application. As set forth below, even if there were obstruction, and even if there remains potential for obstruction in the future, the Government has failed to demonstrate that no conditions can be set to reasonably protect the community from this form of obstruction.

The Court addresses and rejects the Government's argument that Madoff presents a risk of economic harm that jeopardizes the safety of the community.

Here, the Government fails to provide sufficient evidence that any potential future dissemination of Madoff’s assets would rise to the level of an economic harm cognizable under § 3142 of the Bail Reform Act. Further, it is far too great an extension to reach from the cases presented by the Government that narrowly recognize the possibility of economic harm (and rarely conclude the economic harm presented rises to the level of a danger to the community for which someone should be detained) to such a conclusion based on the minimal evidence presented here by the Government.

Madoff's arguments were:

Madoff responds by describing his current state of affairs, including 24 hour-a-day confinement; no access to any bank account held by him, his wife, or joint accounts; his real property in the United States pledged as collateral for the personal recognizance bond he executed as part of his bail;15 and his name, face and circumstance known to every financial institution in the world. (Def.’s Mem. at 7.) Further, Madoff notes that since the entry of his current bail conditions, his wife has voluntarily consented to a restraint agreement with the United States Attorney’s Office that prohibits her dissemination of any of her personal property. Finally, Madoff provides suggestions for further methods to secure any valuable portable property without the need for his detention. (Def.’s Mem. at 10, 17.)

Finally:

The Government has failed to meet the additional burden of proving by clear and convincing evidence that there is no condition or combination of conditions that will reasonably prevent dissipation of such property. See 18 U.S.C. § 3142(e). In fact, its failure to respond to the various additional bail conditions presented by Madoff further supports the weakness of its argument and its inability to show why Madoff’s detention would markedly ameliorate any alleged danger to the community that may result from dissipation of his assets.

So while every other pre trial detainee is locked down sleeping on a cardboard thin BOP bed, taking cold showers, and dining on whatever slop the BOP is serving that day along with making overpriced fifteen minute collect phone calls,  Bernie gets to stay home, take luxurious hot showers, wear his own clothes, sleep in a king size bed, order in luxury food, and talk on the phone as long as he wants. "Aint justice grand," said Levine.