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Shkreli could get locked up Wednesday if bail revoked over bizarre Hillary Clinton hair stunt

  • Shkreli says the $5,000 bounty he posted for Hillary Clinton's hair was meant to be a joke.
  • He apologized for the stunt to a federal judge on Tuesday.
  • Prosecutors claim he is a danger to the public because of the Clinton post and other online comments he had made about two other women.

Martin Shkreli risks getting locked up in jail Wednesday as prosecutors seek to have a federal judge revoke the bail of the "pharma bro" for having offered his Facebook followers $5,000 apiece for any hair they could grab off Hillary Clinton's head during her book tour.

But two leading New York City criminal defense lawyers who spoke to CNBC before Wednesday's court hearing both agreed that Shkreli should not have his $5 million bail revoked for last week's Facebook post, which the convicted fraudster says was always meant to be a joke.

However, the lawyers disagreed on whether that is likely to happen in Brooklyn federal court at the hearing, which comes a day after Shkreli sent a letter to the judge apologizing for the stunt.

"If he had made the comments about another author who wasn't Clinton, I don't think there would be a bail revocation hearing going on here," said one of those lawyers, Michael Bachner.

Former pharmaceutical executive Martin Shkreli and attorney Benjamin Brafman depart the U.S. District Court for the Eastern District of New York, August 3, 2017 in the Brooklyn borough of New York City.
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Former pharmaceutical executive Martin Shkreli and attorney Benjamin Brafman depart the U.S. District Court for the Eastern District of New York, August 3, 2017 in the Brooklyn borough of New York City.

But Bachner added that because Clinton is a former presidential candidate — in addition to being the wife of former President Bill Clinton — and because the Secret Service investigated Shkreli's Facebook post, Judge Kiyo Matsumoto "has to have a hearing and send a message to Shkreli."

"I don't think it's deserving of a bail revocation," Bachner said. "I think she's going to give him a big yelling at."

Bachner said that for Shkreli's bail to be revoked as he awaits sentencing on securities fraud charges, prosecutors would have to prove to Matsumoto that he presents a danger to the public.

In their bid to jail Shkreli, prosecutors have said Shkreli is "a danger to the community."

But Bachner said that will be difficult for prosecutors to prove.

He said he believed Shkreli's lawyers have a good argument to make that the hair bounty was just "some awkward political humor" and not meant as a serious threat.

"I don't think it meets the standard of dangerousness," Bachner said.

The other lawyer, Gerald Lefcourt, agreed with Bachner that the "real issues" for a bail revocation hearing are: "Is he going to flee, and is he going to hurt somebody?"

Lefcourt said there was little, if any, evidence, that Shkreli would flee.

The lawyer also said he did not believe there was strong evidence that Shkreli represents a danger to Clinton or others.

"He probably should be out on bail pending appeal," Lefcourt said.

But the lawyer added that Shkreli on Wednesday may well find himself in jail despite that argument.

"I think the judge is probably at wit's end with respect to ... his conduct," Lefcourt said.

Earlier in Shkreli's trial this summer, Matsumoto imposed a virtual gag order on Shkreli, barring him from publicly discussing the case in and around the courthouse.

That order came after Shkreli ambled into a room full of reporters during a break in his trial, and made a series of scathing comments about the people prosecuting him, calling them "the junior varsity."

And last week, after prosecutors said they wanted his bail revoked because of the Clinton hair bounty, Shkreli wrote on Facebook: ''F--- the government. I will never kiss their ring or snitch. Come at me with your hardest because I haven't seen anything impressive yet.''

It's comments like that, and a slew of other online provocations that Shkreli has committed since being arrested on federal charges in December 2015, that make Lefcourt think there is a good chance that Matsumoto will revoke his bond. Shkreli was convicted in August of defrauding multiple investors in two hedge funds he previously ran.

Asked if he had ever seen a defendant in a criminal case who had been convicted make such a public spectacle of himself as Shkreli has done since early August, Lefcourt said, "No."

"He is just incapable of controlling himself," Lefcourt said.

Normally, the lawyer said, convicts "are terrified, they're very compliant" and keep a low profile as they await sentencing.

Lefcourt also said that Shkreli didn't do himself any favors by posting the bounty offer for Clinton's hair after getting convicted.

"Clearly, you have less of a right to be out [on bail] pending appeal," Lefcourt said.

The lawyer said that if Shkreli's bail is revoked Wednesday he could end up spending a year or more in jail before his planned appeal of the conviction is resolved.

That amount of time could more than equal to what Shkreli might end up receiving as a prison sentence if he loses his appeal.

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