Alison Frankel reports that:
On Tuesday, Judges Jose Cabranes and Reena Raggi of the 2nd Circuit Court of Appeals ordered that former Goldman Sachs director and McKinsey chief Rajat Gupta remain free on bail while his lawyers at Wilmer Cutler Pickering Hale and Dorr and Kramer Levin Naftalis & Frankel try to get his insider trading convictionoverturned on appeal. That’s an unusual order from the appeals court, which typically defers to the judgment of the trial court on post-conviction bail. In this case, U.S. Senior District Judge Jed Rakoff, who oversaw the insider trading trial in June, refused to grant Gupta’s bail request.
The bar is quite high for the appeals court to permit a convicted defendant to defer serving a prison term. When Congress enacted the Bail Reform Act in 1984, its intention was to make bail a rare exception for convicted defendants, not the rule. The law said that post-conviction bail would only be granted if the appeal “raises a substantial question of law or fact likely to result in a reversal or an order for a new trial.”
Sadly, at least from a securities fraud pedagogical perspective, the issues seem to be mainly evidentiary errors by the trial judge:
The overall theme of the brief is that at trial, Rakoff granted the government too much leeway to introduce hearsay evidence and afforded too little latitude for Gupta’s evidence.