Judge Explains Partial Denial Of Roger Stone Prison Delay Bid

By Mike LaSusa
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Law360 (June 29, 2020, 10:50 PM EDT) -- A D.C. federal judge on Monday unsealed the full version of her decision last week to give Roger Stone an extra two weeks to report to prison while denying the longtime conservative operative's request to extend the surrender date even further to September.

U.S. District Judge Amy Berman Jackson lauded the government for its policy of taking the COVID-19 pandemic into account when deciding whether to seek detention for criminal defendants. But Judge Jackson said other factors have to be considered as well.

"At the end of the day, the guiding principle must be that Mr. Stone is entitled to no more and no less consideration than any other similarly situated convicted felon," the judge said. "The difficulty in this case is figuring out who is truly 'similarly situated.'"

Judge Jackson pointed out that there aren't currently any cases of COVID-19 at the prison where Stone is set to serve his sentence. She also said that Stone has a medical condition that may make the 67-year-old more susceptible to the virus, but it "appears to be — as it has been for some time — medically controlled."

Moreover, the judge said that unlike other criminal defendants who had been granted longer extensions of their surrender dates, Stone had run afoul of the judicial system in myriad ways.

"Mr. Stone was convicted of threatening a witness, and throughout the course of these criminal proceedings, the court has been forced to address his repeated attempts to intimidate, and to stoke potentially violent sentiment against, an array of participants in the case, including individuals involved in the investigation, the jurors, and the court," the judge said.

Stone's attorney Seth Ginsberg said the principle of even-handedness mentioned by Judge Jackson "does not appear to have been applied evenly" in her decision.

"If the judge had believed [Stone] was a danger, she would have remanded him regardless of any other considerations," Ginsberg said. "She did not find him to be a danger then and she has not made any such finding now."

The government didn't respond Monday to requests for comment.

Judge Jackson issued a partially sealed version of her ruling late Friday, but she opined that it could be unsealed "in its entirety" because it didn't contain any private medical information. Stone and the government subsequently told the court they didn't have a problem unsealing it.

In the redacted order issued late Friday, Judge Jackson said Stone can report to prison on July 14, though he'll have to remain in home confinement until then.

"This will address the defendant's stated medical concerns during the current increase of reported cases in Florida, and Broward County in particular, and it will respect and protect the health of other inmates who share defendant's anxiety over the potential introduction and spread of the virus at this now-unaffected facility," the judge said.

Stone, 67, a longtime Republican operative and former Trump 2016 campaign adviser, had been ordered to surrender on June 30. The self-described political "dirty trickster" was sentenced to 40 months in prison for obstructing probes into Russian election interference, witness tampering and lying to Congress. He lodged the unopposed prison delay bid on the basis of concerns of "his heightened risk of serious medical consequences from exposure" to the coronavirus in prison and his age.

Prosecutors in the case told Judge Jackson late Thursday that their decision not to oppose Stone's request for an extension of his surrender date has nothing to do with politics and is squarely in line with a department policy enacted in response to the pandemic.

Federal attorneys explained in an eight-page brief late Thursday that the U.S. attorney's office for the District of Columbia, which prosecuted Stone's case, is simply adhering to a guidance Attorney General William Barr issued in March to the Bureau of Prisons. That policy explicitly instructed U.S. attorney's offices across the country "to not oppose a defendant's request to extend a voluntary surrender date for up to 60 days, unless the defendant poses an immediate public safety or flight risk."

Prosecutors' filing came at the request of Judge Jackson, who appeared reluctant to accept it on its face. She asked prosecutors to explain in writing why they did not oppose the bid, indicate how the government responded to similar requests by defendants in other cases in the wake of COVID-19, and update the court on the results of COVID-19 tests at the medium-security federal correctional facility in Jesup, Georgia, where Stone was assigned to serve his sentence.

Judge Jackson's skepticism came as a federal prosecutor, who helped secure Stone's guilty verdict at trial in November, testified before Congress last week that officials "from the highest levels" of the U.S. Department of Justice intervened and gave "favorable treatment" to Stone ahead of sentencing because of his ties to President Donald Trump.

The government is represented by John Crabb Jr. and J.P. Cooney of the U.S. Attorney's Office for the District of Columbia.

Stone is represented by Seth Ginsberg of the Law Office of Seth Ginsberg and Grant Smith of StrategySmith PA.

The case is U.S. v. Stone, case number 1:19-cr-00018, in the U.S. District Court for the District of Columbia.

--Additional reporting by Khorri Atkinson. Editing by Bruce Goldman.

For a reprint of this article, please contact reprints@law360.com.

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January 24, 2019

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