Waller given extra time to file appeal in federal case

Clay Waller has been granted three more weeks to file the appeal of his five-year sentence for his federal Internet threatening conviction.

Waller pleaded guilty Oct. 3 to threatening Cheryl Brenneke, his sister-in-law and guardian of his three children. In sentencing Waller on Jan. 3, federal judge Stephen Limbaugh differed greatly from federal guidelines that suggested a six- to 12-month sentence and gave him the maximum five-year sentence.

Waller's attorney for the federal trial, Scott Tilsen, could not be reached for comment at his office Tuesday, but said after the sentencing hearing that he had planned to appeal any sentence issued that day. Tilsen said his client was being punished for murdering his wife, Jacque Waller -- a crime for which he has not been formally accused or convicted.

"We could have a system where we punish people for crimes they're not charged with, but that would not be the system our founding fathers implemented," Tilsen said after the hearing.

In a motion to extend Tuesday's appeal filing deadline, Tilsen wrote that briefs in two different cases both had deadlines near Feb. 7 and that he needs more time to adequately prepare the brief for Waller's appeal. Tilsen requested the deadline be extended to Feb. 29. The U.S. Court of Appeals for the Eighth District granted the extension Tuesday.

When Tilsen files his brief for the appeal, federal prosecutor Larry Ferrell will have 21 days to file his brief supporting Limbaugh's decision. After Ferrell submits his argument, Tilsen must file a response within seven days.

Ferrell declined to comment on the appeals process.

A panel of three judges will examine the arguments, according to the U.S. federal court website. Although some cases are decided on the basis of written briefs alone, many cases are selected for oral arguments before the court, according to the website.

Waller threatened to kill Brenneke if she hurt his three children. Brenneke gained custody of the children after her sister, Jacque Waller, went missing June 1 and Clay Waller was taken into custody on state charges for theft and harassment.

Clay Waller was reportedly the last person to see his wife before she disappeared, and Cape Girardeau County Prosecuting Attorney Morley Swingle has said in court filings that he expected to file a murder charge against him. Clay Waller has denied involvement in his wife's disappearance.

In sentencing him on his federal charges, Judge Stephen Limbaugh said that, based on a preponderance of evidence, Clay Waller is guilty of murdering Jacque Waller.

Preponderance of evidence is the burden of proof in civil cases and allows a jury or judge to rule whether the proposition is more likely to be true than untrue.

Clay Waller is serving his sentence in the Federal Correctional Institution in Oakdale, La.

psullivan@semissourian.com

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