On the heels of the Fifth Circuit Court of Appeal’s extraordinary order last week commanding the release of former Merrill Lynch executive William Fuhs, the three other Merrill Lynch executives convicted in the Enron-related Nigerian Barge case — including Merrill’s former global investment banking division chief, Dan Bayly — have filed this motion seeking a similar release pending the Fifth Circuit’s disposition of their appeals (this earlier post examined Bayly’s initial such motion). The government’s uninspired response to the Merrill executives’ motion is here, and Bayly’s succinct reply to the government’s response is here.
As noted in these earlier posts, the plight of the four Merrill Lynch executives in the Nigerian Barge case is a prime example of the appalling cost of the government’s criminalization of business in the post-Enron era (for a thorough discussion of that subject in the context of the barge case, begin here). In the Nigerian Barge case, the Enron Task Force took a relatively small transaction under which Merrill Lynch bought a stream of dividend payments from an Enron affiliate and criminalized it through a brazen web of distortion, suppression of key testimony, inadmissible hearsay, opposition to the defense’s jury instruction on the key issue in the case and prosecutorial misconduct. The Task Force effectively prosecuted the Merrill Four for doing their jobs in connection with Enron’s sale of an asset for which Enron may have improperly accounted, although even that issue was never proven at trial.
In reality, the Merrill Four were convicted for having the misfortune of being involved in a legitimate transaction with the social pariah Enron. Here’s hoping that the Fifth Circuit begins the process of righting this wrong by ordering the immediate release from prison of Dan Bayly, James Brown and Robert Furst.