US District Judge Vanessa Gilmore on Monday scheduled retrials for former Enron Broadband Services executives Joseph Hirko, Rex Shelby and Scott Yeager. Hirko and Shelby will be retried on November 3, 2008, while Yeager’s retrial is set for January 12, 2009. In March, a three-judge panel of the Fifth Circuit ruled that Gilmore was correct in refusing to dismiss most of the remaining charges against Hirko and Shelby and all the remaining charges against Yeager (earlier) after jurors were hung on many counts; the three were acquitted on some counts. Attorneys for all three defendants indicated on Monday that they will appeal the Fifth Circuit ruling to the US Supreme Court and will ask Gilmore to delay the retrials if a hearing is granted (Houston Chronicle).
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David Bermingham, Giles Darby and Gary Mulgrew, three British investment bankers known as the NatWest Three, were each ordered on Tuesday by US District Judge Ewing Werlein to report to prison within the next three weeks, each at a different prison. Mulgrew was ordered to surrender to the facility in Big Spring, Texas, on April 30; Darby to the Allenwood facility in White Deer, Pennsylvania, on May 7; and Bermingham to the prison in Lompoc, California on May 9. They all asked for Allenwood at their sentencing hearing and Judge Werlein recommend it, but the Bureau of Prisons has final authority(Bloomberg).
The former Greenwich NatWest bankers were indicted on seven counts of wire fraud in 2002 in connection with a scheme devised by former Enron CFO Andrew Fastow and his right-hand man Michael Kopper. They pleaded guilty in 2007 to one count of wire fraud and were sentenced to 37 months in prison plus restitution by Judge Werlein on February 22, 2008 (earlier). Their plea agreements call for them to be eligible for transfer to the UK after several months imprisonment in the US, and under the UK system they will be eligible for parole after serving half of their sentences.
Jeff Skilling’s lead attorney Daniel Petrocelli on Wednesday called former Enron CEO Jeff Skilling’s 2006 trial “fundamentally unfair and defective” in oral arguments before the US Court of Appeals for the Fifth Circuit in New Orleans. In urging the three-judge panel to overturn the convictions, Petrocelli focused on the August 2006 US v. Brown (Enron Nigerian Barge) decision in which the Fifth Circuit held that “honest services fraud” does not apply when an employee’s actions were intended to benefit the company rather than for personal gain. Skilling was convicted in May 2006 on 19 of 28 counts including conspiracy, securities fraud and insider trading and is currently serving a 24 year prison sentence. Houston Chronicle (Kristen Hays), Texas Lawyer (Brenda Sapino Jeffreys), AP.
The US Court of Appeals for the Fifth Circuit will hear arguments today in the appeal of former Enron CEO Jeff Skilling. Kristen Hays’ Houston Chronicle story here discusses the key issues, especially the “honest services fraud” theory used to convict him. The Fifth Circuit has already rejected this theory in vacating convictions in the Enron/Merrill Lynch Nigerian Barge case. Skilling was convicted in May 2006 on 19 of 28 counts including conspiracy, securities fraud and insider trading; he is currently serving a 24 year prison sentence.
Predictably, the government response to Jeff Skilling’s supplementary appellate brief denies that the Enron Task force withheld material exculpatory information from the former Enron CEO’s defense team. The government’s brief, filed on Tuesday, asserts, “Skilling’s claims rely on isolated snippets culled from 420 pages of handwritten notes and stripped of their context.” It accuses Skilling of using “hyperbolic rhetoric” and says that the Andrew Fastow interview notes that Skilling cites in his supplemental brief either contain information that Skilling had prior to the trial in the summaries of the notes “or would have had minimal value in impeaching Fastow.” Houston Chronicle here (with link to the brief), our earlier posts here, here and here. The US Court of Appeals for the Fifth Circuit has scheduled arguments in the appeal for April 2.
Following the news that the three former Merrill Lynch executives still possibly facing retrial in the Enron Nigerian Barge case have filed a motion asking US District Judge Ewing Werlein to order the government to give them the Andrew Fastow notes (earlier here; Chronicle here), Tom Kirkendall at Houston’s Clear Thinkers posts here on the motion filed by Sidney Powell, attorney for defendant James A. Brown, to dismiss the indictment on grounds of egregious prosecutorial misconduct, Brady violations and double jeopardy, and links here to the motion, which he has bookmarked. It’s a stunning motion which goes well beyond the Fastow notes in its allegations.
In light of the revelations in Jeff Skilling’s recently unsealed brief regarding the Andrew Fastow notes (earlier here and here), attorneys for James A. Brown, Daniel Bayly and Robert Furst — the three former Merrill Lynch executives still possibly facing retrial in the Enron Nigerian Barge case — have now filed a motion asking US District Judge Ewing Werlein to order the government to give them the notes. The retrials are currently delayed while the defendants’ appeal of Werlein’s refusal to dismiss is pending before the Fifth Circuit (earlier). Kristen Hays’ Houston Chronicle story is here.
A three-judge panel of the 5th US Circuit Court of Appeals on Tuesday ruled that US District Judge Vanessa Gilmore was correct when she refused to dismiss most of the remaining charges against former Enron Broadband Services executives Joseph Hirko and Rex Shelby and all the remaining charges against Scott Yeager. The three men were tried in 2005 and acquitted on some charges while the jury deadlocked on others (Houston Chronicle trial verdict story here); Judge Gilmore declared a mistrial but would not dismiss the charges. In Tuesday’s ruling, the appeals court said that despite the acquittals it could not be concluded that the men could not be found guilty of some of the other charges against them. Hirko’s lawyer Per Ramfjord indicated that a motion for rehearing before the full appellate court was possible. The Mary Flood/Kristen Hays Houston Chronicle story is here.
Here, for our readers, is Jeff Skilling’s Supplemental Brief Regarding Andrew Fastow Interview Notes. Originally filed under seal, and now unsealed, the brief details the material withheld from Skilling and how this withholding affected Skilling’s trial defense. We breathlessly await the government’s response. Brady-Giglio claims seldom prevail on appeal. An appellant must prove, among other things, that the withheld information was material, non-cumulative, and unavailable to the defendant by other means. Nevertheless, my initial take on this issue, after coming to it late, is that Skilling has a decent chance to win. The government’s use of a composite 302, which allegedly masked Fastow’s changing stories, as well as the government’s failure to show all of its raw Fastow interview notes to the trial court, are, in my view, quite striking (troubling) factors–and highly unorthodox. Ideoblog discusses the matter further, here, as does the always informative Tom Kirkendall, in Houston’s Clear Thinkers.
The Houston Chronicle reports here on convicted former Enron CEO Jeff Skilling’s latest substantive, and fully unsealed, appellate brief, which publicly references for the first time all of the Fastow interview notes that Skilling claims were improperly withheld from the defense by the prosecution. According to Hays, “[a]fter the trial, jurors told reporters that they didn’t give Fastow’s testimony much weight.” This gratuitous information, whether true or false, will be utterly irrelevant to the Fifth Circuit’s ultimate analysis of whether there was a Brady violation, and, if so, whether it warrants reversal.
Kristen Hays’ Houston Chronicle story here discusses recent filings in the appeal of former Enron CEO Jeff Skilling. At issue are the notes from the FBI interviews of former Enron CFO Andrew Fastow, which the defense contends will reveal exculpatory evidence. Skilling’s lead attorney Daniel Petrocelli describes the content of the notes as “a sledgehammer that destroys Fastow’s testimony.” The defense filings seek to use the notes in the appeal and make the contents public.
The article misleadingly states that Skilling’s attorneys were given summaries of Fastow’s interviews before the trial; a chron.com reader comment to the story notes: “Standard procedure has the prosecution giving the defense ’summaries’ know[n] as Form 302s, made by FBI agents from their raw notes. The Task Force DID NOT do this. Instead, they summarized the FBI forms into a ‘composite draft’, and they destroyed all previous drafts of their summary. BIG difference.”
The US Court of Appeals for the Fifth Circuit has scheduled arguments in the appeal for April 2 (earlier coverage here).
The U.S. Court of Appeals for the Fifth Circuit has scheduled arguments for April 2 in New Orleans in former Enron CEO Jeff Skilling’s appeal of his convictions. Skilling was convicted in May 2006 on 19 of 28 counts including conspiracy, securities fraud and insider trading; he is currently serving a 24 year prison sentence. Skilling’s appeal contends that the government’s “honest services fraud” theory used to convict him is fatally flawed; the Fifth Court has already vacated convictions in the Enron Nigerian Barge case which were based on the same prosecution strategy. Kristen Hays’ Houston Chronicle story is here.
David Bermingham, Giles Darby and Gary Mulgrew, three British investment bankers known as the NatWest 3, were each sentenced to 37 months in prison on Friday by US District Judge Ewing Werlein in Houston. In accordance with their plea agreements, they will also have to pay $7.3 million restitution to Royal Bank of Scotland, parent of their former employer Greenwich NatWest. The plea agreements also allow the men to be eligible for transfer to
the UK in several months, and under the UK system they will be eligible
for parole after serving half of their sentences.
The three men were charged with seven counts of wire fraud in a 2002 indictment in connection with a scheme devised by former Enron CFO Andrew Fastow and his right-hand man Michael Kopper, Enron’s former global finance manager. In a complex series of transactions, Enron paid $20 million for Greenwich NatWest’s interest in a Fastow-controlled partnership, but Greenwich NatWest only received $1 million, while Fastow and Kopper siphoned off the difference and paid $7.3 million to Bermingham, Darby and Mulgrew. However, although the three men agreed to repay the money, they actually only pleaded guilty to one count of wire fraud and that was not the count involving the $7.3 million wire transfer. Tom Kirkendall at Houston’s Clear Thinkers had an excellent analysis of the plea deal here. Kristen Hays has the Houston Chronicle’s story on the sentencing here.
US District Judge Vanessa Gilmore on January 31, 2007 dismissed the five-count conviction of former Enron Broadband CFO Kevin Howard (Houston Chronicle story here) after a ruling by the US Circuit Court of Appeals for the Fifth Circuit, in a separate Enron case, that the government’s “honest services fraud” theory was improper. Prosecutors had conceded that four of the counts of conviction should be vacated but appealed the dismissal of the fifth. Now in a decision filed on Tuesday, the Fifth Circuit has rejected the DOJ appeal (Howard Decision). Prosecutors have not indicated if they will seek to retry Howard (h/t Houston’s Clear Thinkers).
- Schering-Plough President Carrie Smith Cox’s large stock sale prior to the public release of the Vytorin clinical trial results has now come to the attention of the Congressional committee already investigating the Vytorin ad campaign. (Junkfood Science; earlier)
- Tom Kirkendall discusses the Enron Task Force’s continued refusal to turn over potentially exculpatory evidence, especially regarding Andrew Fastow. (Houston’s Clear Thinkers)
- Is the DOJ’s prosecution of Geoffrey Fieger a political vendetta? (Scott Horton in Harper’s)
In Houston on Wednesday US District Judge Ewing Werlein delayed the Enron-related conspiracy and wire fraud retrial of former Merrill Lynch executives Daniel Bayly and Robert S. Furst. The trial was scheduled to start next week but Werlein granted the delay because Bayly, Furst and James A. Brown (who is scheduled for a separate retrial) have filed an appeal with the Fifth US Circuit Court of Appeals in New Orleans asking the court to overturn Werlein’s earlier ruling not to dismiss all charges. The three were convicted in 2004 in the Enron Nigerian Barge case but the Fifth Court reversed the convictions in 2006, rejecting the government’s “honest services fraud” theory. The Yahoo/AP story is here.