Clear Thinkers favorite Dan Jenkins is already in mid-season form with this hilarious pop quiz (H/T Geoff Shackelford) for the start of the 2009 PGA Tour season. Some of the questions to get you started:
7. Camilo Villegas is:
(a) A golfer on the PGA Tour.
(b) A golfer on the LPGA Tour.
(c) An island off the coast of Spain.
(d) A contestant on "Dancing With the Stars."11. When 38-year-old Phil Mickelson said that he had somehow grown an inch through stretching exercises, was it in:
(a) Height?
(b) Width?
(c) Between the ears?15. Since winning the Masters in April, Trevor Immelman has:
(a) Disappeared.
(b) Quit golf.
(c) Changed his name to Sam Parks Jr.
Meanwhile, with the dawn of the 2009 season, Daniel Wexler provides this timely overview of the current top players on the PGA and LPGA Tours. It’s an excellent primer for the upcoming season.
By now, most folks have heard that the government has filed a superceding indictment against U.S. District Judge Sam Kent alleging sexual abuse against a second federal employee and also obstruction of justice in connection with the Fifth Circuit’s previous investigation into the allegations. The previous posts on Judge Kent’s case are here.
As this Mary Flood/Chronicle article notes, Judge Kent faces an enormously difficult fight for his life in the upcoming trial. Given the latest allegations, my sense is that his chances are remote of finding a Houston jury that is not tainted by the lurid local news reports on the case.
As of this date, Judge Kent’s formidable defense attorney — Dick DeGuerin — has still not requested a change of venue. Should he now?
Although Racehorse Haynes is still trying cases well into his 70’s, DeGuerin is now widely regarded as having accepted the baton from Haynes as being the dean of Houston’s outstanding criminal defense bar. Given the difficulty of the case against Judge Kent, could this case be DeGuerin’s equivalent of Hayes’ career-defining T. Cullen Davis case?
Stay tuned.
The Fifth Circuit’s decision yesterday reminded us of the angry mob that lynched Jeff Skilling.
Now, as this timely Roger Parloff/Fortune article notes, an even larger mob is gathering to lynch the businesspeople who were attempting to save their companies in the wake of last year’s financial meltdown on Wall Street:
The level of fury surrounding these inquiries is of a different order from what we saw with, say, the backdating scandals or the Enron and WorldCom failures. Today’s credit collapse has already vaporized about $9 trillion in investment capital, while ripping another trillion in assorted bailout money from the pockets of enraged taxpayers – also sometimes known as "jurors."
Based on the Fifth Circuit’s Skilling decision, those targeted businesspeople would be wise not to rely on the courts for protection from the mob.
In this current anti-business climate, not many folks were expecting that the Fifth Circuit Court of Appeals would set aside former Enron CEO Jeff Skilling’s conviction.
On the other hand, not many folks expected this decision, either.
In the curiously detached 104 page opinion, the Fifth Circuit affirmed Skilling’s conviction, but reversed his sentence and remanded that part of the case to U.S. District Judge Sim Lake for resentencing based on the appellate court’s rejection of Judge Lake’s four level enhancement under the sentencing guidelines for for "substantially jeopardizing a financial institution."
Based on my rough calculations, I think that means that the range for Skilling sentence would be reduced from 292-365 months to 188-235 months. If Judge Lake resentences Skilling at the bottom of new range, then Skilling’s 24 year sentence would be reduced by 104 months, which computes to an 8.5 year reduction.
That’s certainly better than nothing.
In reading the opinion, I gathered the impression that the Fifth Circuit panel really did not have its heart in it. Despite the 104 page length, the opinion mostly glosses over the hotly-disputed fact issues regarding the government’s charges against Skilling. And even in affirming Skilling’s conviction, parts of the decision provide hope to Skilling that his monstrously unjust 24 year sentence will be set aside completely or reduced even further.
Rather than parse the decision in a blog post, here is a copy of the decision in which I have used Adobe Acrobat to bookmark the sections of the decision, as well as highlight and annotate comments on my initial reading of the decision.
First and foremost, the decision muddles the adjudication of Skilling’s argument that his conviction was tainted by the government’s legally invalid "honest services" theory.
If you’ve been following the Enron-related criminal cases from the first one (Arthur Andersen), you know the drill — in an effort to facilitate prosecutions, the Enron Task Force developed a fallacious theory of criminal liability out of the honest services wire fraud statute that is normally used in corporate crime cases involving bribes or kickbacks. In short, the government’s new theory attempted to stick a square peg in a round hole.
As a result, none of the Enron-related prosecutions proceeded smoothly. The government would normally bludgeon former Enron executives into plea deals, have them testify about "secret side deals" that changed the nature of an otherwise valid business transaction and then accuse defendants such as Skilling of breaching their fiduciary duty to the company and committing the crime of honest services wire fraud by allowing the transactions to be accounted for pursuant to the terms of written agreements rather than the "secret side deal." The fact that all of the written agreements contained provisions that rendered any such oral agreements void has been regularly ignored by the government and most courts throughout the entire Enron ordeal.
After the Enron Task Force used this theory of honest services wire fraud to convict Skilling, the Fifth Circuit struck down the theory in the Nigerian Barge case by concluding that it does not apply where employees "breached a fiduciary duty in pursuit of what they understood to be a corporate goal." Accordingly, the Skilling team based a major part of his appeal on the Fifth Circuit’s decision in the Nigerian Barge case.
Without expressly saying so, the Fifth Circuit in Skilling creates a "policymaker exception" to the rule that a breach of fiduciary duty that is aligned with corporate interests cannot be an honest services wire fraud. The Court reasons that, since Skilling was the person who authorized the fraudulent means to achieve the corporate goal, he could be held criminally liable under the honest services wire fraud statute even if his employees could not (pp. 21-23).
Not particularly persuasive reasoning, but there you go.
Some other observations:
At several points in the prosecutorial misconduct section, the Court invites Skilling to file a motion for a new trial with Judge Lake, particularly in regard to the Fastow interview notes that the prosecution failed to turn over to Judge Lake during the trial. The Court specifically finds that "the omission of this statement [that Fastow did not think he discussed Global Galactic with Skilling] from the [FBI Form] 302’s is troubling."
The Court clearly is not impressed by the objectivity of the Houston Chronicle, citing the newspaper’s highly inflammatory coverage of Skilling’s case in finding presumed community prejudice against Skilling. Of course, the Chronicle’s most vitriolic critic of Skilling doesn’t even notice (see also here and here) the Court’s criticism.
On one hand, the Fifth Circuit finds that Judge Lake committed error by failing to presume jury prejudice for purposes of Skilling’s change of venue and jury prejudice argument. Then, on the other, the Court rules that Skilling waived his jury prejudice argument on appeal by failing to register objections for cause on 11 of the 12 jurors.
The Court concludes that Judge Lake’s "exemplary voir dire" helped the government fulfill its burden of establishing that an impartial jury had been impaneled despite the presumed prejudice against Skilling. I have my doubts.
The Court chides Judge Lake for his remarks during a pre-trial hearing that there was a "reasonable likelihood" that the witnesses did not cooperate with Skilling because the witnesses were guilty of related crimes and wished to assert their Fifth Amendment privilege to avoid incriminating themselves. However, the Court concludes that Judge Lake’s improper remarks were harmless error.
The Fifth Circuit lets former Enron Task Force Andrew Weissmann off the hook with regard to Skilling’s allegation of witness intimidation, but notes that "Weissmann would have done well to have brought the issue [of alleged conflict of interest] to the court’s attention instead of emailing [former Enron executive Ken] Rice’s lawyer."
The opinion starts out by observing that "[A]n initial investigation uncovered an elaborate conspiracy to deceive investors abo
ut eh state of Enron’s fiscal health." The Court does not identify who conducted this "initial investigation" or who the participants were in the "elaborate conspiracy." Not particularly convincing.
Although the Fifth Circuit opinion provides Skilling with some running room to continue challenging his conviction and sentence, it is foreboding to the dozens of business executives who are currently subjects of various pending grand juries investigating the meltdown on Wall Street. Given the paper-thin nature of the government’s allegations of criminal conduct against Skilling and the substantial evidence of prosecutorial misconduct, the Fifth Circuit’s decision sweeping most of that under the rug is a strong indicator that obtaining convictions in future prosecutions of business executives will be akin to shooting fish in a barrel.
With the football season winding down in these parts, folks are finally noticing that the Houston Rockets are approaching the halfway point of the NBA season and again look like an also-ran in the playoff race. It’s now been a dozen years since the one-time back-to-back NBA champions have won a mere playoff series.
What happened this time? Dave Berri thinks that Ron Artest has not been the answer.
Meanwhile, Rockets owner Les Alexander has been getting hammered in areas other than basketball, too:
Houston Rockets owner Leslie Alexander has seen his 20% stake in First Marblehead Corp., once valued at nearly $1 billion, plunge to about $15 million. The company, which packages student loans and sells them to investors, saw its business evaporate in 2008. Its shares fell more than 90% last year to about $1.
Thankfully for Alexander, his original investment in the company was only $4 million and — before the 2008 meltdown — he sold a portion of his company stock for $250 million, a substantial portion of which was probably used to pay a $150 million divorce settlement.
What I can’t figure out is whether all of that makes it harder ("We’re paying him what?!") or easier ("It’s only money!") for Alexander to pay Tracy McGrady a total of $40 million over this and next season?
(WRMSOX photo; previous weekly reviews are here)
As expected, the Owls (10-3) rolled to an easy win in the Texas Bowl last Tuesday as star QB Chase Clement (30-44/307 yds/3 TD’s/12 carries for 72 yds/1 TD/1 catch/13 yds/1 TD) and the potent Rice offense overwhelmed the Western Michigan defense (9-5). Any further question why Notre Dame opted for the Aloha Bowl over facing the Owls in the Texas Bowl?
The victory gave the Owls their 10th win in a season for the first time in almost 60 years and their first win in a bowl game since the 1954 Cotton Bowl.
Inasmuch as I’ve been watching the Rice offense develop over past three seasons under Clement, I was not surprised by the Owls’ performance this season. Clement, WR Jaret Dillard and WR-TE-RB James Casey were as talented a trio of offensive players on one team as any in the nation.
The problem that the Owls face is whether they can sustain that level of performance.
Clement and Dillard are both seniors, as is a substantial part of the Owls’ offensive line. Casey is a likely NFL draft choice, so it is unlikely that he will take the risk of uncompensated injury by returning for another season at Rice. Tom Herman, the Owls’ offensive coordinator who really ignited Rice’s spread offense over the past two seasons, left Rice last week to take the same position at Iowa State.
So, Owls head coach David Bailiff is going to have his hands full trying to maintain the performance level that the Owls attained this season. I hope he can, but I have my doubts.
Houston Cougars 34 Air Force 28
The Cougars (8-5) completed a successful first season under new head coach Kevin Sumlin with a victory over a plucky Air Force (8-5) squad on New Year’s Even afternoon in the Bell Helicopter Armed Forces Bowl in Ft. Worth.
The game should not have been as close as it was. The referees inexplicably took away a second half TD from Houston even though it was clear from the replay that RB Bryce Beall had possession of the ball while breaking the plane of the goal line before fumbling (see picture above). Also, the Air Force’s only second-half TD, which allowed the Falcons to narrow the Coogs’ lead to three, was set up by star Cougar TE Mark Hafner allowing an easy pass reception to ricochet off his chest into the hands of a Falcon defender. But for that blown call and Hafner’s gaffe, the Coogs would have won this one going away.
Nevertheless, the Coogs will take the victory, their first bowl win in nine tries since their last bowl win the 1980 Garden State Bowl. Beall, the Cougars’ true freshman RB, was the star of the game as he shredded the Falcons’ defense for 135 yds on 22 carries (6.1 ave) and a TD, while catching four screen passes for an additional 92 yds.
Meanwhile, Cougar QB Case Keenum managed the Cougar offense magnificently (no college QB sets up and throws a screen pass any better), guiding the Coogs to over 400 yds total offense while spreading the ball around to seven different Cougar receivers.
And as noted above, the Cougar defense — which has been the team’s weak point all season — really stepped up in the second half and did a fine job of containing the Falcons’ wishbone offense.
With almost all of their offensive playmakers returning, the Cougars should possess one of the most potent offenses in college football next season. The challenge will be to upgrade the defense, which has suffered the past two seasons from several years of under-recruiting by former Houston coach Art Briles’ staff. Given the probable productivity of the Cougars offense, even a relatively small improvement in the Cougars’ defense next season is likely to vault Houston to the top tier of non-BCS Conference football teams.
The Longhorns (11-1) take on Ohio State (10-2) in the Tostitos Fiesta Bowl at 7 p.m. tonight in Phoenix on FOX. The Vegas line on the game began at Texas minus 11, but it has since moved to Texas minus 8 and, at a couple of casinos, Texas minus 7.5. Take that for what it’s worth.
As predicted, head coach Gary Kubiak didn’t waste any time after the conclusion of the season in firing defensive coordinator Richard Smith and two of his assistants.
As noted since his hiring, I’m not convinced that Kubiak is the best fit as a coach to develop the Texans into a playoff caliber team. However, I am impressed with his willingness to recognize mistakes and take actions to attempt to correct them. Stubbornness is a common characteristic of unsuccessful NFL coaches and Kubiak does not appear to be afflicted with it. Hopefully, he will hire a seasoned NFL defensive assistant who can develop the Texans’ young talent into a unit that is as productive as the Texans’ offense.
On the other hand, I couldn’t help but note the following passage from this NY Times article on the recent firing of long-time Denver Broncos head coach and Kubiak mentor, Mike Shanahan:
Although [QB Jay] Cutler gave the Broncos hope for the future, Shanahan was ultimately undone by an increasingly leaky defense, something a revolving door of defensive coordinators could not seal, and a string of questionable draft picks and free-agent signings that Shanahan made as the team’s executive vice president for football operations. In Shanahan’s absence, the Broncos are in the market for a general manager as well.
The Broncos’ defense was ranked among the league’s top seven in seven of the nine seasons beginning in 1997. In the last four years, however, the defense plunged to middle-of-the-pack status, then to No. 29 in 2008.
If Kubiak hires a Denver retread as his new defensive coordinator who doesn’t improve the Texans’ defense markedly, then similar words will be written about him within a year or two.
Except for the incredibly large amounts, there are no surprises at the top of Golf Digest’s annual list (H/T Geoff Shackelford) of professional golf’s top 50 money earners from both prize money and endorsement income.
Tiger Woods ($117 mil total/$110 mil endorsements), Phil Mickelson ($45 mil/$38.5 mil endorsements) and Vijay Singh ($$43 mil/$26 mil endorsements) lead the way, while Arnold Palmer ($30 mil in endorsement income!) and Greg Norman ($25 mil in endorsements) rounding out the top five.
And, by the way, Golf Digest calculates that Woods has earned close to $900 million in winnings and endorsements since 1996.
Although there aren’t any surprises in the Top Ten earners, there are certainly a few down the list a bit.
For example, can anyone explain to me how 12th-ranked Retief Goosen — who induces sleep whenever interviewed — managed to generate $9 million in endorsement income?
Or how 34th-ranked Rory Sabbatini — one of the most boorish players on the Tour — generated $3.5 million in endorsement income, which is $1.5 million more than 35th-ranked Geoff Ogilvy, who is one of the most pleasant players on the Tour?
Maybe Katie Couric at $15 million a year is a bargain for CBS News, after all?
Richard Justice has already deemed him a genius.
Earlier this month, he visited President Bush in the White House and, on Sunday night, he will be profiled on CBS-TV’s 60 Minutes.
Even Michael Lewis has bought in to the genius story.
But after a middle-of-the-road SEC program thoroughly manhandled his Texas Tech squad in the Cotton Bowl yesterday, Mike Leach looks more like a public relations genius than a football one.
Look, Leach is a reasonably good coach with an innovative offense. However, he is not close to being the savant that Tech’s breakout season is leading some folks to suggest.
In fact, an objective evaluation of Leach’s Tech career reveals that his teams run up big offensive numbers, but are not particularly impressive against teams with comparable or better talent.
After Tech’s 11-2 record this season, Leach has a 76-39-0 record in his nine seasons at Tech, which works out to a salty 66% winning percentage.
Although that is the best mark of any long-time coach at Tech over the past 70 years, a substantial part of Leach’s success has been his 29-5 (85.2%) regular season mark against non-Big 12 opponents, which have been mostly sacrificial lambs.
Of those 34 non-conference games, only five have been against other BCS-conference teams — Ohio State (loss), Mississippi (2 wins) and North Carolina State (2 losses). The last time that Tech even played a non-conference regular season game against a BCS-conference opponent was in 2003.
Meanwhile, Tech under Leach has feasted on such sacrificial lambs as Division 1-AA teams Stephen F. Austin, Sam Houston State, Indiana State, Southeastern Louisiana, Northwestern State, Eastern Washington and UMass, as well as undermanned Division I-A outfits such as SMU and New Mexico.
Eleven of Tech’s non-conference wins under Leach have been against SMU and New Mexico. Winning over 85% of those games isn’t particularly impressive.
On the other hand, Leach’s Big 12 conference record is another story.
Even after this season’s 7-1 Big 12 record, Leach’s record in Big 12 play is 42-30 (58.3%). Leach-coached Tech teams are only 4-14 against Texas and Oklahoma, including this season’s 65-21 embarrassing loss to the Sooners that removed Tech from any serious consideration for a BCS Bowl game.
Indeed, Leach’s teams have had only a 4-4 Big 12 conference record in four of of his nine seasons at Tech, including two of the last three. With yesterday’s loss in the Cotton Bowl, Leach’s bowl record at Tech is a decent, but certainly not superlative, 5-4.
Finally, Leach has used extremely poor judgment in some of his public remarks about assistant coaches on his staff, and he has exhibited a selective memory in his comments about game officials, too.
So, given Leach’s prolific offense, why aren’t his teams better against big-time opponents?
The main reason is that the defenses on Leach’s Tech teams have been generally dreadful, a quality that has not been helped by Leach’s tendency to place his defenses in awkward field position situations by taking bizarre fourth-down chances and throwing high-risk passing plays deep in Tech’s side of the field.
This is genius?
Having said all that, Leach has done an admirable job at Tech. Producing a consistently winning team and going to nine straight bowl games is a noteworthy accomplishment at Tech.
However, Leach’s record at Tech is simply not extraordinary and not indicative of the genius label that many are attaching to him. And it is unlikely that he will ever do better than he has this past season because the nature of his system makes it difficult for him to recruit the defensive talent necessary to compete at the highest levels of the big-time college game.
Frankly, my sense is that it’s more likely that another innovator of offensive football — Georgia Tech’s Paul Johnson — will get his team to a BCS Bowl game before Mike Leach.
Says TigerHawk:
"Until I witnessed Brent Musburger’s love of USC, I did not think it was possible for a journalist to love a subject more than Chris Matthews loves Barack Obama. Now I am not so sure."