Former WorldCom Inc. chief executive Bernard J. Ebbers has been sentenced to 25 years in prison, but if defense lawyers have their way, it could be a while before the telephone industry mogul sees the inside of a federal pen.
Ebbers's legal team has asked a judge to allow him to remain free pending the results of an appeal of his conspiracy and fraud conviction -- a process legal analysts say could take a year or more. That would give the 63-year-old mogul more time to spend with his family before he reports to prison for what essentially constitutes a life sentence.
Federal prosecutors in New York promptly opposed the request and will file court papers laying out their arguments by next month.
To keep Ebbers out of prison, defense lawyers need to prove that he will not flee the country and that he is likely to succeed on at least one ground in his appeal.
There is little chance that Ebbers would abscond, lawyers from both sides agreed Wednesday. The former milkman and basketball coach has strong family ties in Mississippi, and he long ago surrendered his passport to authorities.
But it is less clear whether U.S. District Judge Barbara S. Jones will find that his appeal holds merit. Earlier this week, the judge denied a defense motion for a new trial that employed many of the same arguments Ebbers will raise on appeal.
Among them: that the judge should not have instructed jurors they could find Ebbers guilty if they believed he consciously avoided knowing about an $11 billion accounting fraud at the telecommunications firm.
Defense lawyers Reid H. Weingarten and Brian M. Heberlig also served notice that they would take issue with the sentence, the harshest penalty to date in a series of recent corporate scandals. The lawyers say Jones improperly calculated the amount investors and employees lost as a result of the fraud, which pushed WorldCom into the nation's largest-ever bankruptcy. The Ashburn company has since emerged from bankruptcy protection as MCI Inc.
Keeping convicted business leaders out of prison while they appeal has several recent precedents. A federal judge Wednesday allowed 80-year-old Adelphia Communications Corp. founder John J. Rigas to remain free as his appeal proceeds. The ailing Rigas was sentenced to 15 years in prison earlier this year. Investment banker Frank P. Quattrone, who argued his appeal of obstruction-of-justice charges in New York on Tuesday, also won the right to stay his 18-month sentence as his case moved through the system.
Former federal prosecutor Scott L. Fredericksen said that the judge might rule in Ebbers's favor as "an act of charity" but that the issue was a close call.
"This is a question that is truly up in the air," said Fredericksen, a partner at Foley & Lardner LLP in the District. "If I had to put my money down, I'd be surprised if the judge let him out pending appeal."
If Ebbers does not win the bid to stay out of prison, he must report to officials by Oct. 12. The judge said she would recommend he serve the time at a low-security facility in Yazoo City, Miss., near his home town.