On June 23, 2020, Roger Stone made a motion to extend his deadline to report to the Bureau of Prisons facility to which he was designated — FCI Jesup in Georgia — from June 30 to August 30, 2020.

The filings by Stone can be accessed here:  Court Listener for Roger Stone.

Stone’s motion represented that the Government did not oppose his request, as the Department of Justice has made a policy decision being applied nationwide to not oppose requests for 60 day extensions in order to assist BOP in dealing with issues involving COVID-19.

Later on the same day, Judge Amy Berman Jackson ordered the Government to file a response to the motion, explaining the Government’s non-opposition, an explanation of the policy Stone referenced, and examples where the policy has been relied upon in other cases.

On June 25, 2020, the Government responded, saying in essence that Stone’s representation was correct, and listing several other cases where surrender dates had been extended by 60 days on the same grounds without Government objection.

On June 26, 2020, Judge Berman Jackson granted-in-part and denied-in-part Stone’s motion to extend his surrender date — she gave him an additional 14 days rather than the 60 days requested, and he must now surrender to the US Marshals no later than July 14, 2020.

Yesterday afternoon Stone filed an “Emergency Motion for Stay” with the DC Appeals Court on Judge Berman Jackson’s denial of his “unopposed motion” for a 60 day extension.

This strikes me as an odd approach to take — especially since he has not yet made a motion in the District Court for bail pending appeal.  I expect that motion to be filed any day now, which will trigger another round of briefing before Judge Berman Jackson, and if she denies Stone’s motion for bail, he’ll appeal her denial to the DC Appeals Court as well.

I think yesterday’s filing with the DC Appeals Court is likely to lead them to the view that Stone is involved in gamesmanship designed to drag out his surrender past the election date — and I’m sure that is what Stone is doing.

But filing this “Emergency” motion could compromise the treatment that a appeal of a denial of a motion for bail might otherwise receive.

Granting a defendant the ability to remain out of custody while pursuing an appeal is relatively rare in the federal system.  The basis to do so is set forth in a statute, and the grounds upon which bail should be granted are pretty narrow.  But Stone’s post-trial motion for a new trial based on “juror misconduct” — which Judge Berman Jackson denied — is the kind of issue that would justify an order granting bail pending appeal.

I think Judge Berman Jackson is likely to deny such a motion for bail in the first instance — which must be made to her before her denial can be the subject of an appeal.  But in my time with DOJ I saw many such instances where the Appeals Court granted bail pending review after the trial judge denied such a motion in the district court.  The trial court judge has already determined for herself that Stone’s claims about juror misconduct are not sufficient to justify a new trial.  But the Appellate Court judges have no fixed views on the question yet — they don’t even know the facts.  They will look at the claim on its face and so long as there is nothing that suggests the claim is frivolous, there is a good chance they would reverse the bail denial and order Stone be allowed to remain out of custody pending his appeal.

This specific issue is viewed much differently at the appellate level where they always hold out consideration for the possibility that the district court judge made a mistake — they reverse district court judges’ decisions all the time.  If they think its possible Judge Berman Jackson made a mistake on Stone’s motion for new trial based on juror misconduct, they are not likely to make him sit in jail serving his sentence until they — the Appeals Court — has a chance to look at the facts and what Judge Berman Jackson decided.

But what looks like a “frivolous” emergency motion over her denial of his motion to extend his surrender date could “poison the well” on a possible bail motion before he’s in a position to even make one.