Judge moves retrial for Merrill Lynch exec in Enron case while dismissing case against another

Retrial for Merrill Lynch exec rescheduled

HOUSTON — The retrial of a former Merrill Lynch executive whose 2004 Enron-related fraud and conspiracy convictions were overturned has been rescheduled for May, a federal judge ordered Thursday.

U.S. District Court Judge Ewing Werlein Jr. moved Robert S. Furst’s retrial to May 17. It had been set for Feb. 8.

Earlier this week, Werlein granted a request by prosecutors to dismiss charges against another ex-Merrill Lynch executive, Daniel Bayly.

Furst, Bayly and a third executive, James A. Brown, were convicted in 2004 of conspiracy and wire fraud. They were accused of helping push through Enron’s sham sale to Merrill Lynch of three power barges moored off the Nigerian coast in 1999. The deal was struck to make the earnings of Enron’s energy division appear larger.

Enron Corp. filed for bankruptcy protection in December 2001, after years of accounting tricks could no longer hide billions in debt or make failing ventures appear profitable.

Attorneys for all three men have argued no crime was committed by them because Enron orchestrated the scheme and that no money or property was lost.

Bayly was given a 2 1/2-year sentence, Furst got three years and Brown was sentenced to a three-year, 10-month term.

Paul Coggins, Furst’s attorney, told Werlein he planned to file a motion asking the judge to dismiss the case against his client because of prosecutorial misconduct.

After the hearing, Coggins said his motion will accuse prosecutors of not sharing evidence in the case which could have cleared his client.

Prosecutor Laura Perkins declined to comment on Coggins’ accusations.

During the hearing, Werlein asked Perkins if prosecutors planned on settling Furst’s case as they did with Bayly.

“No. This case is anticipated to go to trial,” Perkins said.

The prosecution’s motion to dismiss the charges against Bayly only said it was doing so “in the interests of justice.” Perkins declined to elaborate.

Bayly’s attorney, Thomas Hagemann, said he could not comment on the specific reasons for the dismissal.

“After seven years, this Justice Department did the right thing and I am grateful for that,” he said.

The case against Brown, the third executive, was on hold after his attorneys appealed it to the Supreme Court. But the court late last year declined to review the case. Perkins said she expects the case will return to Werlein’s court.

Bayly was Merrill Lynch’s former head of investment banking. Furst was Merrill’s Enron relationship manager and Brown was an accountant.

An appeals court threw out their convictions in 2006 after finding fault with the prosecution’s legal theory known as “honest services.”

The court said the executives were doing what Enron wanted them to do and did not profit at its expense. As a result, the court ruled, they did not deprive Enron of “honest services.”

Prosecutors later removed the “honest services” language from the indictment.

The appeals court upheld Brown’s convictions of perjury and obstruction of justice for lying to a grand jury about the nature of the deal.

The honest services theory has resulted in overturned convictions in other Enron cases. The Supreme Court is set March 1 to hear arguments in the appeal of convicted former Enron CEO Jeffrey Skilling, who is challenging the validity of the legal theory.