Friday, July 6, 2007
Former Brocade Communications CEO Gregory Reyes gets his turn to rebut the government's charges of conspiracy and securities fraud for options backdating at the company. First up is the defense Rule 29 motion for a judgment of acquittal, which will be decided by U.S. District Judge Charles Breyer. In the defense brief (available below), Reyes' counsel, Richard Marmaro, begins by asking, "After Two Weeks of Trial, the Prosecution Rests: Where Are We?" The defense answer should be obvious -- "The prosecution's proof is deficient on virtually every substantive element of every count of the indictment . . . Mr. Reyes is not a criminal. He did not commit a crime. No rational juror could find guilt beyond a reasonable doubt on this factual record. This case does not belong in a criminal courtroom, and we respectfully urge the Court to end it now."
While Rule 29 motions are very difficult to win, the government's case did not bowl everyone over, at least according the the CAL LAW Legal Pad blog (here), which found the connection between Reyes and the backdating at Brocade to be "smudgy." Judge Breyer turned down a number of defense motions for a mistrial, and I doubt he will take the whole case away from the jury, although he could dismiss a count or two. Then it's on to the defense case, which, if its rhetoric is to be believed, could be rather short. At least two prosecution witnesses testified about statements Reyes made regarding backdating options -- what the defense brief refers to as a "look-back process" -- that could push the defense to call him as a witness to explain what he did (or did not) say, and what he meant. If Reyes does testify, that should provide enough fireworks. (ph)