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Enron funds restitution impossible after lays death { October 18 2006 } Original Source Link: (May no longer be active)
http://www.latimes.com/business/la-fi-lay18oct18,1,6521333.story?coll=la-mininav-businesshttp://www.latimes.com/business/la-fi-lay18oct18,1,6521333.story?coll=la-mininav-business
Verdict Against Lay Is Erased
A judge cites the fact that the late Enron founder didn't have a chance to appeal his conviction.
By Thomas S. Mulligan
Times Staff Writer
October 18, 2006
A federal judge Tuesday wiped out the criminal conviction of Enron Corp. founder Kenneth L. Lay, ruling that his July 5 death denied him the chance to appeal a Houston jury's fraud and conspiracy verdict.
The ruling by U.S. District Judge Sim Lake, who presided over the 16-week trial in spring, will make it tougher — though by no means impossible — for prosecutors and private plaintiffs who are trying to recover money from Lay's estate, legal experts said. A Justice Department spokesman said the government would continue to pursue restitution from Lay's estate.
Lake also dismissed the original indictment under which Lay had been brought to trial. In a 13-page ruling, Lake cited a 2004 decision by the U.S. 5th Circuit Court of Appeals vacating the conviction of a defendant who died while his appeal was pending. The Justice Department's Enron task force so feared this outcome that last month they unsuccessfully appealed to Congress to pass a law abolishing the legal doctrine under which Lake threw out Lay's conviction.
The doctrine "unnecessarily harms crime victims," prosecutors Sean M. Berkowitz and John C. Hueston wrote Lake in a motion asking him to delay action until Congress had a chance to consider legislation. "It erases the hard-won verdicts against those who have wronged them, verdicts that might aid crime victims in civil litigation," they wrote.
Congress recessed without considering the legislation, and in any case, it might have been seen as an unconstitutional interference with the courts, said Carl Tobias, law professor at the University of Richmond. "It certainly raises a red flag," he said.
Lay died of a heart attack at 64 while vacationing with his wife, Linda, near Aspen, Colo.
Along with his protege, former Enron Chief Executive Jeffrey K. Skilling, Lay was convicted of 10 counts of fraud and conspiracy charges arising from the energy-trading firm's stunning collapse into bankruptcy in late 2001. Enron's implosion cost thousands of jobs and wiped out billions of dollars of stock-market value at a firm that had once been a darling of Wall Street.
Skilling is scheduled to be sentenced Monday and is expected to receive a prison term of at least 20 years. The government said it would go ahead with efforts to obtain restitution for victims. "Today's ruling does not change the fact that Mr. Lay was found guilty after a four-month jury trial and a separate bench trial," Justice Department spokesman Bryan Sierra said in a statement. "We will continue to pursue all remedies available for restitution on behalf of the victims of the fraud at Enron."
Prosecutors are seeking $182 million in restitution and penalties from Skilling at the time of his sentencing. According to Bloomberg News, that sum includes $43.5 million initially sought from Lay. The Justice Department did not say whether it would pursue a separate civil suit. The Securities and Exchange Commission already has a civil suit pending against Lay and Skilling. "On behalf of the Lay estate, we are pleased with the opinion," said lawyer Sam Buffone of the firm Ropes & Gray in Washington. Given the legal precedents in the federal 5th Circuit Court of Appeals, which includes Houston, he said, there was "no other outcome possible."
The amount of Lay estate's remaining fortune is in dispute. Prosecutors believe he transferred tens of millions of dollars to relatives, but Lay testified at trial that he was nearly broke. In his ruling, Lake wrote that the law allows a court to enter an order of restitution only when sentencing a defendant, and because of his death, Lay was never sentenced.
New York-based lawyer Lowell Peterson, who obtained money for former Enron employees denied their severance benefits, said that although a guilty verdict always made it easier to establish liability in a criminal case, civil plaintiffs could still use the mounds of evidence generated in the Lay and Skilling trial. "If I were Lay's estate, I wouldn't take too much comfort in this ruling," Peterson said. "The evidence is still pretty strong."
Moreover, the standard for awarding damages in a civil suit — by a preponderance of the evidence — is lower than the "beyond a reasonable doubt" standard for a criminal conviction.
Lay's estate and Skilling still face a massive consolidated shareholder lawsuit, whose lead plaintiffs are represented by the San Diego firm of Lerach Coughlin Stoia Geller Rudman & Robbins. A spokesman for the firm could not be reached for comment Tuesday night.
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thomas.mulligan@latimes.com
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