Madoff Remains Free, Judge Rules

Jan. 12, 2009— -- Bernard Madoff, the man who allegedly committed the largest financial crime in history, will not go to jail while he awaits trial. Instead he will remain under house arrest, in the comfort of his posh penthouse apartment in Manhattan, despite prosecutors' somewhat belated efforts to put him behind bars.

In a written decision handed down at noon Monday, Federal Magistrate Ronald Ellis rebuffed the argument prosecutors made last week that charged circumstances warranted that the alleged $50 billion fraudster's bail be revoked. Late Monday, the US attorney sent a letter to Ellis saying the government intends to appeal the decision.

Ellis said that the government's arguments that Madoff was a danger to the community - an economic danger in that he might further dissipate assets that could be used to pay back the allegedly defrauded investors and an increased flight risk now that the case against him is more substantial - did not warrant any changes.

Madoff will remain confined to his $7 million home in the heart of Manhattan's posh Upper East Side, with an armed guard, an electronic security bracelet, and immeditate links to the FBI and US Marshals should he attempt to leave without permission and an escort.

The federal magistrate imposed some additional, minor conditions to the current terms of Madoff's bail. They included additional restrictions on the transfer of any assets and the requirement that Madoff provide the court a list of all valuable in his Manhattan home and that a security company search "all outgoing physical mail to ensure that no property has been transferred."

"The issue at this stage of the criminal proceedings is not whether Madoff has been charged in perhaps the largest Ponzi scheme ever, nor whether Madoff's alleged actions should result in his widespread disapprobation by the public, nor even what is appropriate punishment after conviction. The legal issue before the Court is whether the Government has carried its burden of demonstrating that no condition or combination of conditions can be set that will reasonably assure Madoff's appearance and protect the community from danger." The government had not, the judge decided.

Click here to read Judge Ellis' decision.

The government's bail revocation argument was made orally last Monday and a written brief was submitted last Tuesday. In each case, prosecutors argued that a million dollars worth of heirloom jewelry and watches that Madoff and his wife, Ruth, shipped through the mail during the holidays was an effort to circumvent restrictions on dissipating assets that might need be returned to allegedly defrauded investors. Madoff had shipped the items to his sons and to a friend who allegedly was also a victim of his fraud.

The government said that the economic danger plus flight risk required detention - this after initially structuring remarkably lenient bail terms for Madoff and suffering public outcry and derision on cable television business news outlets.

Madoff's lawyers conceded that on Christmas Eve, Madoff and his wife sent a number of packages to friends and family.

"Mr. Madoff gathered a number of watches that he collected over the course of years, knowing that, due to the sudden change in his circumstances, he would never have an occasion to wear these watches again," according to a brief filed by Madoff's attorneys, who say packages were sent to the Madoffs' sons, a daughter in-law, Madoff's brother and sister in-law, Mrs. Madoff's sister and a married couple who are close friends.

Madoff, say his attorneys, "simply did not realize" that the SEC order he consented to "pertained to these personal items". The jewelry has all since been recovered, according to Madoff's lawyers.

Madoff was arrested on December 11th and his intitial bail conditions left him free to come and go as he wished during daytime hours, with restriction to his home only at night. Within a week those conditions were changed and on December 18th, Madoff was restricted to his home on a 24 hour basis.

In another development in the case, the prosecution and defense agreed this past weekend to extend the time within which the prosecution could continue developing its case without either seeking an indictment or submitting to a preliminary hearing. Madoff was charged in a federal complaint, and under the court guidelines, the government had 20 days in which to make a case. That time frame has expired, but as is often the case, the two parties agreed to give the government more time. The preliminary hearing rule would have required the government to present its case today. It now has until mid-February. And the judge has the right to grant additional extensions.