The Nigerian Barge market loss hearing

After convicting four former Merrill Lynch executives and a former Enron executive of wire fraud and conspiracy charges yesterday, the jurors in the Enron-related trial known as the Nigerian Barge case heard from opposing expert witnesses today regarding the market effect that the Nigerian Barge transaction had on Enron.

Today’s hearing was held to allow the jury to consider the evidence of market loss that is used in determining sentences under the federal sentencing guidelines. As noted earlier in these posts, the U.S. Supreme Court’s recent decision in Blakely v. Washington has called the Constitutionality of the federal sentencing guidelines into question, particularly if the jury is not allowed to consider the issue of market loss.

Anthony Saunders, chairman of the finance department at New York University testified on behalf of the prosecution and estimated — with a straight face — that Enron’s sham sale of three power-generating barges to Merrill Lynch led to damages suffered by Enron shareholders of about $43.8 million.

Professor Saunders came up with this damage assessment despite the fact that Merrill Lynch booked only a $12 million profit on the deal, Enron lost no money on the transaction, and the alleged sham nature of the transaction was not even discovered until a year and a half after Enron’s equity value had become worthless upon the company filing bankruptcy.

At any rate, Professor Saunders speculated that the 1 cent per share that the barge deal contributed to Enron’s 1999 earnings translated to about 47 cents per share of the company’s stock price of $53.50 at the time the company’s financial result were announced in January 2000. Take that 47 cent figure times the number of outstanding Enron shares at the time and wallah — you get a $43.8 million figure.

Of course, whether that number bears any reasonable resemblance to the value that the barge deal contributed to Enron’s stock price is another issue entirely.

The prosecution’s market effect reasoning here is so flawed that it borders on the preposterous. In reality, the fact that Enron did not account for the Nigerian Barge transaction properly made Enron’s earnings look better than they really were. Thus, that accounting increased Enron’s share value for the benefit of investors who were buying and selling the stock.

Moreover, the prosecution has presented no evidence — because there is none — that he decline in Enron’s share value during its demise into bankruptcy in 2001 had anything to do with revelations regarding the accounting on the barge transaction. This is because the alleged improper accounting for the barge deal was not even discovered until well over a year after Enron went into bankruptcy and its equity value had become essentially worthless.

At any rate, Dan Fischel, a law professor at the University of Chicago who testified for the defense, countered with a more realistic market loss evaluation and concluded that the loss was closer to $120,000. He also noted that Professor Saunders’ methods were “inconsistent with the real world,” and that Professor Saunders’ methodology relied too heavily on academic models that are not generally used in evaluating a company’s value in the business community. That is a charitable understatement, to say the least.

The market loss hearing will conclude on Friday, and the jury is expected to present its findings to U.S. District Judge Ewing Werlein shortly thereafter. If the jury buys Professor Saunders’ absurd market loss calculation, the defendants could be facing the equivalent of life sentences under the applicable federal sentencing guidelines.

If that occurs, then this prosecution will officially cross the line from being a “mere” injustice to becoming a modern day witch hunt.

Scandal in the House of Representatives

This Washington Post editorial examines the scandal that is the self-perpetuating nature of the House of Representatives:

Out of 435 House races, incumbents lost only seven — an even more impressive survival rate than that of two years ago, when eight incumbents were defeated. In nearly all House races, moreover, there was no serious doubt about the outcome: 95 percent of races were decided by a margin of more than 10 percent, according to the Center for Voting and Democracy, and an astonishing 83 percent were decided in 20-point-plus landslides.

How has this happened? Just take a look at the way in which we allow our Congressional districts to be established:

The main cause of the incumbents’ success is the country’s scandalous system for designing voter districts. Instead of entrusting the design to nonpartisan technocrats, the U.S. system entrusts it to state legislatures, allowing the majority party to promote partisan ends. The partisans feed demographic and polling data into their computers and come up with district boundaries that give their sides as many safe seats as possible. Because this process involves crowding opposition voters into a handful of opposition districts, it creates safe seats for both parties and an incentive for incumbents on both sides not to rock the boat.

And who has been at the forefront of this wrangling of Congressional districts? Of course, Tom DeLay and his friends:

The darkest wizardry occurred in Texas. There, the state Republican Party redrew the districts of five white Democrats, hoping to unseat all of them so that the Democrats would become identified as the party of minorities. The plan succeeded in four cases (outside Texas, a grand total of three incumbents were defeated anywhere). Rep. Charles W. Stenholm, a long-serving conservative Democrat who had been forced to run in a Republican-leaning district against a Republican incumbent, went down in defeat, as did three others who had pulled the Democratic caucus toward the center.
The Texas redistricting faces a court challenge. But whatever the legal outcome, it’s clear that these schemes are an inversion of democracy: Politicians get to choose their voters, rather than the other way around. Incumbent members of Congress face little threat of being unseated and so have little reason to be responsive to voters; their chief vulnerability lies in the threat of a primary, which encourages them to play to party activists.

The upshot of all of this is increased polarization in the political process:

[I]ndependent moderates are a shrinking force in the House of Representatives. In the 1970s, on the partisan roll calls, the average member backed the party position 65 percent of the time. In the 1980s, the average degree of partisan loyalty rose to 73 percent; in the 1990s, 81 percent; and in 2001-02 the partisanship index hit a remarkable 87 percent.

Quare: Is it time for judicial intervention over the legislative gerrymandering of Congressional districts?

Calvin Murphy goes to trial

Former Houston Rockets star and Basketball Hall of Famer Calvin Murphy trial on sexual assault charges stemming from claims he molested five of his daughters when they were children cranks up today in Judge Mike McSpadden‘s criminal state district court in Houston. Here are the earlier posts on the case.
The trial is expected to last about two weeks. Murphy, 55, is charged with three counts of indecency with a child and three counts of aggravated sexual assault. Each charge is punishable by up to life in prison, so Murphy’s freedom for the remainder of his life is literally at stake.
This trial is going to be ugly and very sad.