NEW YORK (CNN) -
Martha Stewart's lead attorney Robert Morvillo intends to appeal her conviction by arguing the judge unfairly prevented him from explaining to the jury Stewart had not been charged with criminal insider trading, according to a person close to the defense team.
"We think that was important," a person knowledgeable with the strategy told CNNfn. "Some of the jury comments afterwards indicated they felt they were punishing her for the trade. We should have been able to explain you're not being asked to judge the propriety of the trade."
Stewart was convicted of obstruction of justice, conspiracy and two counts of false statements for lying to federal investigators about the reason behind her sale of ImClone stock in December, 2001. She and stockbroker Peter Bacanovic maintained they had an agreement to sell ImClone (IMCL: Research, Estimates) if the price fell under $60-a-share.
Prosecutor Karen Seymour in her opening argument said Stewart "was told a secret tip" from broker Bacanovic that "the head of ImClone was trying to get rid of his shares."
"Morvillo was never allowed to clarify that," the source said. "If you're looking at the state of mind of Martha Stewart you need to know there's no underlying crime to cover up."
During the trial Judge Miriam Goldman Cedarbaum ruled, "a secret tip is different from insider trading."
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Morvillo responded, "I don't know what the difference is in the context of this case," arguing the Government had maintained Stewart's motive was to cover up her illegal trade. The defense attorney complained, "to the extent that your Honor is going to preclude us from demonstrating that Ms. Stewart is not guilty of insider trading, I respectfully submit that we are being unduly restricted."
Lawyers who observed portions of the trial say the argument is unlikely to succeed with an appeals court.
"I don't think they have any legitimate grounds for appeal," said attorney Jacob Zamansky. "You have to have some major screw up for a case like this to be reversed or for a judge as prominent as this to be challenged by an appeals court and this doesn't rise to that level."
The government doesn't have to prove a motive, said attorney Robert Gottlieb. "They just have to prove she knowingly lied."
While Stewart was never charged with criminal insider trading for her sale of ImClone, she is facing a civil lawsuit from the Securities and Exchange Commission alleging that her sale of ImClone was an illegal inside trade.
Morvillo made the decision not to put Stewart on the witness stand early in the legal proceeding, according to the source. "We didn't want to; only if we had to throw a hail Mary pass."
Stewart is scheduled to be sentenced on June 17th. Legal analysts say under federal sentencing guidelines Stewart faces 10-18 months in prison.
After sentencing Morvillo may appeal to the Second Circuit of the U.S. Court of Appeals where a three judge panel would hear arguments and make a ruling.