The New York Times, and at least 1,400 other news sources, are reporting that Senator Ted Stevens of Alaskan (and Bridge-to-Nowhere and “The Internet is a series of tubes”) fame, has been convicted on all charges of making false statements on his disclosure forms.  Though conventional wisdom may have assumed that Senator Stevens (who does not automatically lose his seat due to the conviction) would be convicted, it was actually pretty dicey for the government, as the judge scolded the AUSAs trying the case a number of times.  Additionally, there will probably be a lot of second-guessing about whether Senator Stevens should have rushed to trial as he did.  The Speedy Trial Act states that an individual has the right to be put to trial within 70 days of his initial appearance before a federal magistrate judge.  He could have “waived” that deadline, however, and tried to push the case off for a number of months in order to have more time to prepare.

In any event, Senator Stevens will no doubt file a motion for a new trial, or other post-conviction relief.  In the meantime, however, a presentence investigation report will be compiled by a United States Probation Officer, and sentencing will probably be set for at least three months from now.  After that point, the final judgment will be issued, and Senator Stevens will have ten days from that day to file his notice of appeal with the Ninth Circuit Court of Appeals, which may prove to be useful for him.  As everyone knows, the Ninth Circuit is CRRRRRRRRAAAAAAAAAZZZZZZZZZZYYYYYYY.

Last week, the Houston Chronicle had a little blurb about a doctor who is reporting to FPC Bryan after being convicted of allegedly injecting individuals with fake Botox™.  (Allegedly she and her husband used Botulism Toxin Type A, rather than the FDA-approved Botox™.) (Link.)

Not surprisingly, she is appealing her conviction and sentence, and she had filed a motion to stay the execution of sentence pending appeal, so that she wouldn’t have to report to the facility until the appeal had been addressed.  Staying the execution of sentence pending the appeal is difficult, but not impossible.

As a baseline consideration, the “judicial officer” will order a person who has been convicted and sentenced to a term of imprisonment in a federal court to be detained.  18 U.S.C. § 3143(b).  There are, however, exceptions.  The first hurdle is whether the individual is a danger to the community or a flight risk; if either is the case, then the individual will be detained.  (It should be noted that, though it is not written in the statute, courts have created a presumption of both which the defendant must affirmatively overcome.)  If the defendant is able to affirmatively overcome the presumption, then the “judicial officer” must determine whether the appeal is for the purpose of delay (it rarely is) and whether the appeal raises a substantial matter of law or fact that is likely to result in one of the following:  reversal of the conviction; an order for a new trial; a sentence that does not include a term of imprisonment; or a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.  If the judicial officer finds for the defendant, then he shall order his or her release.

In the middle of March, the Tenth Circuit Court of Appeals overturned Joseph Nacchio’s 2007 conviction for insider trading.  But his victory, according to Reuters, might be short-lived, as the Tenth Circuit has agreed to rehear the appeal en banc.  (Link)

There’s a good lesson to learn from the Court’s decision: a victory (defined as reversing a conviction) isn’t always the end of the story.  According to Rule 35 of the Federal Rules of Appellate Procedure, rehearings en banc (which means that all the judges in the Circuit will rehear the appeal), are “not favored” and therefore do not ordinarily occur.  Nonetheless, if a rehearing en banc will help ensure uniformity of the Court’s decisions, or if the proceeding involves a question of exceptional importance, then a rehearing may be ordered.

The primary thing to take away from the Tenth Circuit’s decision is to realize that the government can ask for the case to be reheard–it isn’t like it is at the trial court if the defendant is acquitted and the case is over.