Defense attorney Ira Lee Sorkin said the government is using "inflammatory rhetoric and hyperbole" to make a flimsy argument and called the gifts an innocent mistake. He also pointed out that all of Madoff's corporate assets were under the control of government-appointed trustees and receivers and his business had been shut down. In addition, according to court papers that Sorkin alluded to, Ruth Madoff had signed confessions of judgment and agreed to limit her spending to a monthly amount agreed upon with and monitored by the government and secured her husband's bail with three multimillion dollar properties in her name.
Sorkin said mailing of jewelry and watches was a "desperate and futile attempt to reconnect" with family and friends.
"There are no assets to dissipate. The accounts are frozen, the business is closed, his travel is restricted," he said.
Judge McKenna asked that the defense and prosecution list "on a single sheet of paper" the current bail conditions, which are outlined in various court document submitted and agreed to by all parties over the past four weeks. McKenna will review those conditions with an eye toward any modification. In past cases of multimillion dollar white collar fraud, the home confinement terms have included limits on visitors, visiting hours, use of internet, access to cell phones, personal digital assistants, text messaging devices and fax machines. Many of those restrictions are not currently spelled out in the bail terms.
But, Sorkin noted prior to McKenna's decision, that the only condition would seem to satisfy the prosecution was a lock down of Madoff in solitary confinment with no visitors. That is not now going to happen, although should an indictment be handed down the prosecution could once again make the argument for pretrial detention, possibly using the indictment as a condition that increased the risk of flight.
After they were rebuffed Monday by a federal magistrate in their effort to place Madoff behind bars, the prosecutors in the investor fraud case reinvigorated their effort this week to place the alleged perpetrator of a $50 billion Ponzi scheme behind bars until such time as he is prosecuted or a deal is reached in lieu of prosecution.
A 49-page "letter brief" submitted to Federal District Court Judge Lawrence McKenna Tuesday sought to overturn the decision by federal magistrate Ronald Ellis, but while offering a procedural history and arguing its points strongly, it seemed to offer little in the way of new information.
Prosecutors continued to argue that Madoff is an economic danger to the community - a premise that Ellis found questionable - they cited once again the effort by Madoff to ship heirloom jewelry through the mail as an attempt to "dissipate assets" and while they acknowledged the current bail conditions were perhaps the next most stringent to confinement they argued they were not enough to stop Madoff from further bleeding off assets that could recompense his allegedly defrauded investors.
The government again argued that Madoff had "little to lose given the lengthy time of incarceration that he likely faces."
The brief was filed in federal district court in New York. As a backdrop to it, published reports indicate that conversations are ongoing between the prosecution and the defense, which earlier had acknowledged some degree of cooperation with the government.
Prosecutors added that Mrs. Ruth Madoff, while not a party to the proceeding, cannot be trusted to enforce not to unilaterally "dissipate" the assets.
An initial agreement between the defense and prosecution gave soft bail terms for Madoff following his December 11th arrest - confinement at night to his $7 million Manhattan penthouse and security against flight by consigners to the bond and the penthouse and other properties in his or his wife's name. They were quickly amended to keep Madoff confined in the Upper East Side home 24 hours a day watched by armed security and wearing an electronic ankle bracelet designed to trigger alarms if he strayed.