The new definition of “cooperation”

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This timely Wall Street Journal ($) article reports on the government’s new pressure tactic in investigating and prosecuting business crimes — pressuring businesses to condition the business’ support of its employees who are under investigation on the employee’s cooperation with the government, which can of course use the employee’s statements against him in prosecuting him for a crime. The WSJ article uses the example of the government’s ongoing investigation into Big Four accounting firm KPMG’s tax shelter promotion (earlier posts on that matter are here). As the WSJ article notes:

Jeffrey Eischeid, a onetime star at accounting giant KPMG LLP, is bracing for possible criminal charges that could land him in federal prison for more than two decades. His offense? Marketing tax shelters that KPMG said were legal.
While the U.S. Attorney in Manhattan is the immediate source of his legal jeopardy, he has another one to worry about: KPMG.
Until recently, the accounting firm staunchly supported both its tax shelters and Mr. Eischeid, whom it sent to Congress to defend the shelters. But this year the firm, which like Mr. Eischeid is at risk of a fraud or conspiracy indictment over the tax shelters, switched strategies. It placed Mr. Eischeid, a 46-year-old partner, on leave, then asked him to resign. And it refused to pay his legal costs unless he agreed to cooperate with the prosecutors, where anything he said could be used against him.
Why the about-face? The answer involves federal sentencing guidelines for businesses, prescribing stiff mandatory penalties for white-collar crimes such as fraud. The sentencing guidelines also tell how companies can lower their odds of being charged with a crime in the first place: by cooperating fully with the federal investigators. And the government has been refining and tightening its definition of cooperation — with broad implications for how U.S. companies interact with employees.

Recent changes, contend critics who include attorneys for some KPMG staffers, encourage companies to break faith with their own employees, making it harder for them to avoid self-incrimination. The critics say that companies, to avoid facing charges themselves, now sometimes feel obliged to fire people, snitch on them, refuse to pay their legal fees and withhold documents they need.

And the price of not cooperating with the government? Based on recent cases, the price is extremely high:

Companies can ill afford to ignore the guidelines because criminal charges, even without a conviction, take a severe toll. This is especially true for financial-services companies. The damage is evident in the fate of such once-mighty firms as Drexel Burnham Lambert and Arthur Andersen LLP, which later faced criminal charges. Drexel folded and Andersen all but disappeared, with a remnant today of only 215 employees.

For a partner like Mr. Eischeid in a firm such as KPMG, the choices and stakes in such a criminal investigation are also extremely high:

After Mr. Eischeid learned prosecutors were interested in him, KPMG gave him a choice. He could cooperate with the investigators, and the firm would pay his legal fees. Or he could go it alone, in which case he would have to foot his own legal bills and would risk being fired.

Mr. Eischeid decided it was too risky to meet KPMG’s conditions for paying his bill. He retained Mr. Arkin. The lawyer recently refused prosecutors’ requests to speak with his client unless Mr. Eischeid is assured “he would not be viewed with the specter of certain indictment or forced guilty plea.”
Mr. Eischeid has a lot to lose. Since graduating from the University of Georgia, he has never held any other job than the one at KPMG and a predecessor firm, and his chances of finding other employment in his field now appear slim.

[Mr. Eischeid] could face more than 20 years in prison if he is indicted and later convicted at a trial. Mr. Eischeid knows that cooperating with the prosecutors prior to charges could mean a smaller penalty. But prosecutors have indicated he would have to plead guilty to at least three felonies, his lawyer says, even though “everything Jeff Eischeid said and did with the tax products he’s now being investigated for selling was scripted by KPMG and approved by KPMG’s professional-responsibility committee.”

Finally, the sad case of Jamie Olis looms large over Mr. Eischeid’s case:

Looming large in Mr. Eischeid’s thinking is the case of Jamie Olis, a midlevel executive at Dynegy Inc. Maintaining his innocence, Mr. Olis went to trial in Houston, was convicted — and drew a 24-year prison term dictated by federal sentencing guidelines. Says Mr. Eischeid, whose last day at KPMG was last Friday, “That could be me some day.”

Let’s assume for a moment that Mr. Eischeid’s tax shelter work was on the margin of tax avoidance legitimacy. Apart from the issue of whether our Tax Code should be written in a manner that encourages such tax avoidance schemes, is not the public interest protected sufficiently by the financial risk that Mr. Eischeid’s clients take in attempting to avoid taxes in this manner? Additional tax, penalties, defense costs and even more accounting fees — clearly, the potential cost of such avoidance schemes is high. Does criminalization of such behavior — particularly where the government’s approach makes it difficult for the persons involved to mount a defense — serve any useful public purpose?

Nigerian Barge defendants go on the offensive

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This NY Times article reports on a potentially important development in the Enron-related criminal case against two former Enron executives and four Merrill Lynch executives dubbed the “Nigerian Barge case.” The Houston Chronicle story on these latest developments is here.
A day after the Enron Task Force had elected not to list former Enron CFO Andrew Fastow as a witness in the case, the Task Force advised the defendants that the government has in its possession potential exculpatory evidence for the defense relating to Mr. Fastow. Defendants immediately asked U.S. District Judge Ewing Werlein Thursday to conduct an evidentiary hearing to find out why prosecutors have withheld until the last minute evidence from Fastow that could help the defense.
According to the defense motion, in one FBI interview, Fastow said he did not even recall one of the defendants — former Enron finance executive Dan Boyle — being involved in Enron’s 1999 sale to Merrill Lynch of an interest in electricity-generating barges in Nigeria.
As noted in this earlier post, the government’s theory of the case is that Enron’s sale of an interest in the barges to Merrill was a sham and not a “true sale” for accounting purposes because Fastow orally promised Merrill in a secret side deal that Enron would either buy back the barges or broker a deal for them the following year. However, none of the deal documents contained that promise, and the the parties contirmed in the written documents that they were relying only on the representations and agreements contained in the written agreements between the parties. Fastow’s statements to the FBI and Justice that no such oral agreement existed could be strong evidence for the defense that the alleged side deal did not exist.
In a pre-trial conference last Thursday, Judge Werlein was openly skeptical about several of the prosecutors’ statements regarding why they had not turned over potentially exculpatory evidence in their possession to the defense. It will be interesting to see how this eminently fair Judge reacts to these latest developments.

Growth of “Micropolis” communities

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This Wall Street Journal ($) article reports on the growth of a certain type of community that is known as a “micropolis” — growing population centers of at least one town of 10,000 to 50,000 people removed by as much as 100 miles from the nearest large city that are drawing refugees both from rural America and suburbia. These communities offer some of the cultural attractions and conveniences of cities without the liabilities and headaches of urban sprawl. Not only has telecommuting and internet mail-ordering made it easier for folks in such communities to remain connected to trade and commerce from outlying areas, employers find it easier to open a factory or an office park because of lower real estate and labor costs.

UT regents elect James Huffines chairman

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This Austin American-Statesman article reports on the University of Texas System Board of Regents selection of James Huffines, an Austin banker and behind-the-scenes Republican powerbroker, as chairman of the UT Board of Regents on Wednesday. Mr. Huffines succeeds Charles Miller, a retired Houston money manager, who resigned the chairmanship but will continue to serve as a regent until Governor Perry appoints his replacement.

Robert Durst bond amount struck down as unreasonable

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The incredible murder case involving Robert Durst finally took an expected turn on Wednesday as the 14th Court of Appeals struck down state district Judge Susan Criss’ absurdly high $3 billion bond as a condition for Durst’s release pending his trial on evidence tampering and bail-jumping charges. The appellate court directed Judge Criss to conduct another hearing soon to reconsider the amount of the bond and provided guidelines for what it considered to be a reasonable amount of the bond.
Based on the outcome of Durst’s murder trial, if Durst’s attorney Dick DeGeurin could only get a jury trial on the issue of the amount of the bond, he might get Durst released on personal recognizance.

Stros beat Cubs again

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The Rocket dominated the Cubs for seven innings in running his record to 8-0 as the Stros beat the Cubs on Wednesday afternoon at Wrigley Field, 5-1.
Clemens struck out five and gave up only five hits, a run, and two walks in his seven innings of work. His effort was was highlighted by his running discussion with home plate umpire Mike Fichter, which Clemens carried on in a relatively diplomatic manner throughout the game. But after the seventh inning, Clemens walked to the dugout yelling in anger while never looking at Fichter, and Fichter stared at the Rocket during his entire walk to the dugout. As they say in the bigs, Clemens “has a little turd in him.”
As usual, Lance Berkman drove in the lead run and reached base for the 33rd game in a row. Jeff Kent also had a triple and scored three runs, while Lidge and Dotel were dominating in the eighth and ninth innings for the second game in a row.
The Stros get a day to play golf in St. Louis on Thursday before opening a weekend series with the Redbirds on Friday night. Wade Miller, Tim Redding, and Roy O will pitch the series against the Cards.
In other news, the Stros announced the signing of Pete Munro, who has been with the Stros off and on over the past three seasons. Munro had been pitching with the Twins’ AAA club this season, but could opt out of that contract if he received an offer from an MLB club.
The odd man out is Brandon Backe — one of the two Brandons who stunk on Tuesday night in Chicago — who was optioned to AAA New Orleans. Backe has actually pitched better than the other Brandon (Duckworth), but the Stros still have options under Backe’s contract to send him to the minors. I suspect that the Stros do not have any options under Duckworth’s contract. Nevertheless, my sense is that the Stros will do something soon with Duckworth, probably either working out a deal to allow him to attempt to improve at AAA or simply grant him his unconditional release.

Holman Jenkins on the charade of “energy independence”

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This Wall Street Journal ($) Holman Jenkins, Jr. piece lays the wood to John Kerry’s “energy independence” blather that he has been using recently in various campaign speeches and working papers. The entire column is a brilliant expose of the demagogury that commonly revolves around the issue of energy policy and the alleged need for “energy independence” from Mideast, and here are a few choice tidbits:

[Kerry] puts himself in excellent company here, since the same shibboleth has been paid lip service by every president since Nixon. It’s also a favorite of prominent newspaper columnists who, throwing up their hands about the Middle East and finding Americans more tractable targets for castigation, cite the urgent need for a “Manhattan Project on energy.” The idea never fails to elicit applause from audiences of ordinary voters and focus groups too, in about the same way that Mom, apple pie and stopping foreigners from “stealing our jobs” are reliable applause lines.
That is to say, as a goal, energy independence is neither desirable nor practical and, were it otherwise, would still not solve any real problem. But it provides a useful service as a vehicle of escapism and an emblem of personal virtue.

In fact, Mr. Jenkins postulates that Kerry’s plan to reduce dependence on Mideast oil would likely have unexpected consequences:

Oil is oil: We’d still be bound by prices in the international marketplace with all their unsettling volatility. Mr. Kerry proposes nothing more than a symbolic slap at the Arabs, his target accounting for less than 10% of total consumption. In fact, were his plan to have any effect at all, the U.S. would likely become more dependent on imports as high-cost U.S. producers were squeezed out; and more dependent on Mideast oil, as high-cost foreign producers were squeezed out.

Then Mr. Jenkins deals with several of the unspoken assumptions that underlie the escapist fallacy of energy dependence on Mideast oil:

We’d be able to wash our hands of military and security entanglements in the Mideast. No, we wouldn’t. Oil would remain a commodity in global markets, so we’d still be exposed to the international price of oil, including all gyrations caused by Mideast politics. Even in the improbable and bizarre circumstance that the U.S. swore off oil consumption altogether, we’d still have to live in this world. Notice that we invest heavily in the security of Japan, South Korea, Israel and Western Europe, though none has oil.
Our dependence makes us beholden to Arab oil states. This is similar to the argument put to President Truman by the State Department when it vehemently opposed his recognition of Israel. Yet it’s hard to imagine how we could make ourselves more irritating to Arab states than by supporting Israel, which we’ve done for 50 years. Somehow we still manage to keep buying all the oil we want.
We’d be freer to press for democracy and human rights in the Mideast. Huh? The U.S. is going to engage in campaigns of destabilization against unattractive regimes in which we no longer have an interest? On the contrary, their co-optation by petrodollars and consequent integration in the world economy is the main inducement to the Arab oil states to eschew antisocial behavior.
The Saudis spend our oil money on religious schools preaching hate against the West. The Saudis would continue to receive billions for their oil even if the U.S. weren’t buying. In any case, their support for radical Islamists has nothing to do with oil and everything to do with the Saudi regime’s domestic insecurities. We can’t fix this problem with energy policy; let’s hope we’re not so feckless as to evade the real fight against terrorism in favor of a fantasy that all will be well if Congress is allowed to spend billions on a pork-barrel scheme to wean industrial society off hydrocarbons.

Mr. Jenkins concludes by noting that the problem of high energy prices is a different problem than reliance on Mideast oil:

None of the above means we don’t have a real, workaday concern for “energy security — more accurately stated as a concern about price, price, price, and even more importantly, volatility of price.
But this problem is steadily fixing itself as oil consumption becomes a smaller part of total consumption, leaving the economy better able to withstand price gyrations. Per unit of economic output, we burn 55% fewer petroleum Btus than we did 30 years ago. As is the case with most historical dilemmas, we will overcome our reliance on Mideast oil by surviving long enough for history to give the U.S. new and different problems.

As readers of this blog have heard before, your demagouge antenna should go up every time you hear a politician advocate a policy that means that we should pay more for a product such as oil.

Nigerian Barge case update: Justice won’t call Fastow

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As noted in this earlier post, the Enron Task Force‘s first trial in a case stemming from its over two year investigation into the collapse of Enron Corp. will begin next Monday in U.S. District Judge Ewing Werlein‘s court in Houston.
The case has been dubbed the “Nigerian Barge case” because it involves the actions of two former Enron executives and four Merrill Lynch executives in arranging Merrill’s purchase of an interest in a barge off the coast of Nigeria at the end of 1999. The Task Force alleges that the deal was a sham that was done merely to improve Enron’s financial condition artificially at the end of its fiscal year. The Task Force’s proof of the alleged sham is that former Enron CFO Andrew Fastow allegedly promised that Enron would broker a sale of the interest in the barges for Merrill the following year and that Merrill would not have done the deal but for Fastow’s promise. Thus, argues the government, the sale was not a “true sale” of the interest, and Enron’s accounting of the deal as a true sale was false.
An apparent weakness in the government’s theory is that, even if the government could prove that Fastow made the promise and that Merrill would not have done the deal but for that promise, Fastow’s promise was made before the parties entered into the final deal documents, which contain the typical provision that essentially provide that the parties are relying only on the written representations in the documents and that any oral promise made prior to the written agreements between the parties is not being relied upon. Thus, even if Fastow had made the promise to broker a deal for the interest in the barges to induce Merrill to buy it, that promise was not contained in the written agreements and, by signing them, Merrill confirmed that it was not relying on them. Stated simply, Merrill would not have been able to enforce Fastow’s oral promise to broker a deal for the barges.
In view of the foregoing and Fastow’s plea bargain with the government, it would seem that Fastow’s testimony that the deal was a sham would be of great importance to the government. However, this Chronicle article reports that the Task Force has decided not to call Fastow as a witness in presenting its case in chief during the trial.
Given the importance of Fastow’s allegedly fraudulent deal-making to the government’s case, this is good news for the defense. Moreover, in light of the written agreements between Enron and Merrill, is there really any way that the Task Force can sustain its burden that an oral side deal to broker a deal for the barges was an enforceable part of the deal? Stay tuned.

Two informative articles on radical Islamic fascists

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I’m on the road for a couple of days, so I don’t have much time for blogging. But I wanted to pass along two articles on radical Islamic fascists that are particularly insightful.
First, Daniel Pipes has this article that summarizes the evolution of the strange political climate that currently exists in Saudi Arabia. Mr. Pipes notes Bernard Lewis‘ analogy that helps understand the Saudi position among Muslims in general:

“Imagine that the Ku Klux Klan gets total control of the state of Texas. And the Ku Klux Klan has at its disposal all the oil rigs in Texas. And they use this money to set up a well-endowed network of colleges and schools throughout Christendom, peddling their peculiar brand of Christianity. You would then have an approximate equivalent of what has happened in the modern Muslim world.”

H’mm. In other words, Dr. Lewis, sort of like what happened with the Mormons, Utah and the United States? ;^)
The other article of note is this one from Richard Chesnoff, who has been reporting on the wars of the Middle East for over 30 years. I particularly like Richard because he is a real war reporter and does not mince words. An example:

Al Qaeda also has apparently infiltrated a number of nongovernmental agencies. Among them, the Yemen Women’s Rights Organization. My source explains: “Because of Islamic society’s strict taboo on body searches for women, Al Qaeda finds women ideal couriers.”
The situation in Saudi Arabia seems worse. Though Saudi officials frequently cloud or completely deny the facts, intelligence shows that two Saudi Air Force pilots, Lt. Safr al-Shahrani and Major Sayyaf al-Bishi, were arrested last year on suspicion of having Al Qaeda ties and of planting missiles in the Al Qawiza area south of Jeddah Port. Their reported plan: attack U.S. military vessels.
There are also reports that the Al Qaeda terrorists whose suicide bomb killed 35 people in Riyadh last year were secretly helped by members of the Saudi National Guard, the same force that supposedly protects the Saudi Royal Family. In Khobar this weekend, the terrorists reportedly wore Saudi Army fatigue uniforms. Did they steal them? Or were they supplied to them by somebody within the national guard?
There are similar reports of internal infiltration coming from Sudan and Pakistan.

The Islamic fascists remain a formidable threat to United States and world security, and this threat is far too serious to be just another political football during the upcoming Presidential campaign.

Stros battle back to beat Cubs

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The Stros showed some heart tonight as they held on behind some outstanding relief pitching by Mike Gallo and Dan Miceli to beat the Cubbies, 5-3.
After Bags and Jeff Kent yaks staked the Stros to an early lead, the Cubs tied it at 3-3 behind three solo shots off of Stros’ starter Brandon Gopherworth, er. or make that Duckworth (Duckworth has now given up a rather startling nine home runs in 24 innings this seasons). After the third shot in the fourth, the Cubs loaded the bases with no outs against Duckworth, when manager Jimy Williams made good use of his quick hook. Gallo came in and and struck out Corey Patterson on four pitches and then induced Ramon Martinez to bounce into a 1-2-3 double play. Gallo won player of the game for that effort.
The Cubs loaded the bases again in the sixth off of Brandon Backe (the only ineffective Astros reliever in this game; guess it wasn’t a good night for pitchers named Brandon) when Miceli came on to get Lee to pop out and fan Patterson and Martinez. Mike Lamb came through with a clutch pinch hit two run double in the eighth, and then Lidge and Dotel mowed down the Cubs with relative ease in the final two frames. Between them, Patterson, Martinez, and Derreck Lee left an incredible 15 Cub teammates stranded on base, much to the vocal disdain of the Cubs’ fans.
The only downer of the game was the continued futility of Duckworth, who was one of the three pitchers that the Stros received from the Phillies in the Billy Wagner deal. My sense is that Duckworth needs some tuning at AAA to determine whether he can pitch at this level consistently, but I don’t know whether the Stros have any options left under his contract.
The Rocket revs up for his first ever game at Wrigley on Wednesday afternoon against the Cubs’ testy Matt Clement, who likes to throw high and tight just as much as Clemens. Should be interesting.