In May 2006, Skilling was convicted by a jury of one count of conspiracy, twelve counts of securities fraud, five counts of making false representations to auditors, and one count of insider trading. The indictment alleged several possible objects of the conspiracy, including securities fraud and honest-services fraud, and the district court's jury instructions permitted the jury to convict on any of the alleged theories of guilt. The jury returned a general verdict of guilty on the conspiracy charge without identifying the specific object of the conspiracy. The district court sentenced Skilling to 292 months of imprisonment and three years of supervised release, and assessed $45 million in restitution. (Emphasis on counts added.)In 2010, the Supreme Court narrowed the "honest-services" fraud statute, invalidating the Goverment's honest-services theory in the case and remanded the case to the 5th Circuit to determine whether the honest services jury instruction amounted to "harmless error." Yesterday, the 5th Circuit issued an opinion concluding that the instruction error was harmless beyond a reasonable doubt accepting the Government's argument that:
Skilling participated in a scheme to deceive the investing public about Enron's financial condition in order to maintain or increase Enron's stock price...[demonstrating] beyond a reasonable doubt that absent the honest-services instruction, the jury would have convicted Skilling under a valid theory of guilt—conspiracy to commit securities fraud.The Houston Chronicle interviewed Wayne State Law professor and white-collar law specialist Peter Henning who was surprised by the opinion, but does not expect a rehearing. "This has to be a severe disappointment for Skilling, who won at the Supreme Court, only to lose on the remand," Henning said. "It shows that groundbreaking decisions are not always helpful to the actual defendant in the case." Login to Fastcase to read yesterday's complete opinion here or link to the opinion here: U.S. v. Skilling.
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