Monday, November 13, 2006
It started as three - Lay, Skilling, and Causey.
Lay is gone, Skilling is embarking on a 24+ sentence that awaits appeal, and Richard Causey, former Chief Accounting Officer at Enron, who dropped off the team middle of the road - that is, after indictment, but before trial --by entering a plea - now will be sentenced tomorrow.
His plea is pretty definitive and calls for 84 months incarceration with a possible reduction to not less than 60 months with a 5K1.1 motion recognizing cooperation. 5K1.1 motions can only be filed by the government, although courts now have some discretion in this post-Booker world. But this plea calls for the court to follow the federal sentencing guidelines, so reductions may only be in the hands of the prosecutor, and only if the government determines that they want a sentence reduction for cooperation.
Just weeks ago, we saw that Andy Fastow's plea called for 10 years and he in fact received 6 years. Causey's plea, however, clearly provides that the agreement is "null and void" if the court fails to follow its terms. But non-compliance with the terms of the agreement are irrelevant if the parties fail to object to the non-compliance.
And in an odd turn of events, it may be possible that Causey will receive a sentence in excess of Fastow's sentence (see Houston Chronicle here) If this happens then the government would be saying that some cooperation is worth more than other cooperation. The government may advocate that the timing of the agreement to cooperate is what counts, or they may base it upon unknown factors that the public will never hear. But one has to continually ask whether the federal government should be the one with the power to hold this cooperation factor over the heads of the accused and what happens when our judiciary merely becomes a rubber stamp to prosecutorial power. (see here)