Friday, November 25, 2005
In addition to the government's motion to dismiss the obstruction of justice charge (with prejudice) against Arthur Andersen, the Enron Task Force is not opposing a motion by former Andersen audit partner Dave Duncan to withdraw his plea agreement to an obstruction of justice charge. Duncan's position is that he admitted to the same crime that Andersen was convicted of, and the Supreme Court's reversal of the conviction in that case means he too did not admit to the requisite intent for an obstruction conviction.
While the government's position on Duncan's motion appears to be consistent with the Andersen dismissal, a Bloomberg report (in the New York Times here) hints at another possible reason for permitting Duncan to withdraw his guilty plea. The article speculates that, by withdrawing the plea, Duncan can refuse to cooperate with the defense lawyers in the Enron conspiracy prosecution because he will once again be exposed to possible prosecution for his conduct while at Andersen, and therefore could assert the Fifth Amendment if called as a defense witness.
While the government also will not be able to call Duncan as a witness, the effect of Duncan's availability on its case may be insignificant. The government already has Duncan's statements (and perhaps grand jury testimony if he appeared before that body), and if he recounted statements made by members of the conspiracy that allegedly included Ken Lay, Jeffrey Skilling, or (in particular) Richard Causey, Enron's former chief accounting officer, then those may be admissible as coconspirator statements. Under Federal Rule of Evidence 801(d), statements by one conspirator made during the course of and in furtherance of a conspiracy are admissible against other members of the conspiracy as substantive evidence and not subject to the hearsay rule. Any recitation of statements by conspirators could be admissible, even without Duncan being available to testify. If the defense sought to call Duncan, he would assert his Fifth Amendment privilege and refuse. This may be one instance in which the district court, already concerned about allegations that the Enron Task Force has discouraged witnesses from cooperating with defense lawyers, could give serious consideration to requiring the government to grant Duncan immunity from prosecution to make him available to the defense.
Another potential benefit to Duncan's plea withdrawal and the restoration of his Fifth Amendment privilege is that he cannot be called by the defense to testify about Andrew Fastow, Enron's former CFO and the likely star witness in the government's case. Duncan had significant interaction with Fastow, and to the extent the defense will seek to undermine his recollections and credibility, Duncan could be a good source of information for such impeachment material. If Duncan is beyond the reach of the defense, then it may cut off an avenue of attack on Fastow.
I'm not much of a conspiracy theorist, but this is one time when the withdrawal of a guilty plea, something the government usually opposes quite strenuously, may have an upside for the prosecutors. (ph)