The defendants began putting on their cases this week in the Enron-related Nigerian Barge trial in Houston federal court, and already there have been some significant developments.
Attorneys for defendants and former Merrill Lynch executives James Brown and Daniel Bayly rested their cases on Tuesday without putting their clients on the stand. In white collar criminal cases, this is a highly risky move. Juries in such trials generally expect to hear the defendant’s story. Even though they are not supposed to hold the defendant’s decision not to testify against the defendant, juries nevertheless often do so.
In recent high profile white collar cases, neither Martha Stewart nor Jamie Olis testified, and their juries both voted for conviction. On the other hand, Frank Quattrone did testify during his trial and his jury voted to convict, anyway. So, electing to testify certainly does not ensure an acquittal in white collar cases, but my experience is that electing not to testify in such cases ratchets up the risk of conviction significantly. Meanwhile, William Fuhs, one of the Merrill Lynch defendants in the Nigerian Barge case, did elect to testify yesterday. He will be subjected to the prosecution’s cross-examination today.
Left unstated in the mainstream media’s accounts of the trial is the continued dubious nature of the government’s case in this trial. The government spent three weeks putting on its case in chief, which consisted almost entirely of testimony from former Enron executives who admitted that they were liars and cheats. Each of these witnesses stated that they had lied about the Nigerian Barge transaction to prosecutors initially, but now allege — after copping plea bargains with the government — that they are telling the truth in supporting the government’s theory that the Nigerian Barge transaction was a sham.
The government’s theory of the case is that Enron orally promised Merrill Lynch through its main liar — Andrew Fastow — that Enron would either buy the barges back or broker a deal for the barges in six months at an agreed rate of return for Merrill Lynch. Therefore, reasons the government, Merrill Lynch was not truly at risk with regard to the transaction and, thus, Enron’s booking of the deal as a sale was fraudulent.
However, it is undisputed at the trial that the deal documents — entered into after Fastow’s oral inducements to Merrill — did not include any such Enron agreement to repurchase or broker the barges. Likewise, it is undisputed that the written agreement between the parties includes the standard provision that Merrill could rely only on Enron’s written representations in the deal documents and could not rely on any prior oral representations (such as Fastow’s oral promises) in electing to enter into the deal. Consequently, it is undipusted that Merrill Lynch could not have enforced Fastow’s oral promise against Enron in civil court had Fastow not arranged to have one of his off balance sheet partnerships buy the barges from Merrill.
So, where does all that leave us? The government’s case relies on the theory that the unenforceable oral promise of someone who the government says is a liar and cheat — i.e., Fastow — rendered Merrill’s risk in buying the barges non-existent. Or, stated another way, the moral obligation of a liar and cheat to do something that he is not legally required to do is such a sure thing that Merrill was not at risk in entering into the transaction.
Quare: Inasmuch as it is undisputed that Fastow is a liar and a cheat, and that the deal documents did not obligate Enron to buy or broker the barges for Merrill’s benefit, how could Merrill not be at significant risk of having to hold the barges for a long term where its only known exit strategy from the deal was a liar and cheat’s unenforceable moral obligation to take Merrill out?
I have said it once, but I am compelled to say it again — this case is an abomination that would not be prosecuted but for the fact that the government believes that they can obtain a conviction against anyone who associated with the disgraced Enron. That is a dangerously poor reason for the government to exercise its awesome power to take away the freedom of citizens.