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Saturday, May 10, 2008

U.S. Supreme Court Denies Rigas Appeal

John And Tim Rigas Must Be Resentenced

By Donald Gilliland

Previously published in The Potter Leader Enterprise
and republished here with permission.

The United States Supreme Court has declined to hear
the appeal of John and Tim Rigas.

The court announced Monday that the Rigases’ petition
for writ of certiorari was denied.

The court made no comment on the decision.
According to the court docket, the justices took
little time to decide the matter once all the required
filings were before them. The filings were distributed
Feb. 13 for a conference Friday, Feb. 29. The decision
was issued the following Monday, March 3.

It was the final court of direct appeal for John and
Tim Rigas, sentenced respectively to 15 and 20 years
in federal prison after a jury found them guilty of
conspiracy, securities fraud and bank fraud.

Rigas attorneys had argued that the convictions ought
to be overturned in part because prosecutors never
presented an expert witness at trial and never
explained to jurors the financial rules which the
Rigases were accused of violating.

The government responded by arguing – successfully –
that the technical financial rules were immaterial,
and that sufficient other evidence was presented to
allow the jury to convict without expert testimony.
That’s not the end of the story.

John and Tim Rigas must be resentenced because the
Second Circuit Court of Appeals threw out one of the
two bank fraud convictions against them. That is
expected to happen sometime in the latter part of
April.

Rigas attorney Lawrence McMichael said “the law is
very clear, you start from scratch” when resentencing.
Thus, he has filed an 85-page memorandum with Judge
Leonard B. Sand reviewing all the factors to be
considered in the resentencing.

“Should (the judge) agree, the Rigases will be out of
jail very soon,” said McMichael.

However, if the judge imposes a sentence substantially
similar to the current sentence (which the government
has already suggested in previous debates), the
Rigases can appeal the new sentence to the Second
Circuit, and ultimately again to the U.S. Supreme
Court.

McMichael said, “Sentencing law has changed
dramatically since they were sentenced.” He noted two
Supreme Court cases and one Second Circuit case that
could have bearing on the Rigases next court date.
McMichael also noted Jose Padilla, convicted last
August of plotting to set off a “dirty bomb” in a US
city.

“He got less time than Tim Rigas did,” said McMichael.
Another avenue of appeal also exists once the Rigases
are resentenced. At that point, John and Tim have one
year to challenge the basis of their convictions.

“Every criminal sentence is subject to constitutional
review under federal statute known as a habeas corpus
petition,” said McMichael. “That allows the court to
review the grounds upon which the defendant was
convicted and the process that was followed.”

That petition would first go before Judge Sand, but
has the same appeal opportunities as the resentencing
issue.

McMichael said, “It’s late in the fourth quarter, but
the game isn’t over yet.”

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