Monday, March 31, 2008
This Wednesday is the day that the Fifth Circuit will listen to arguments in the case of United States v. Skilling. Although the briefs are filled with many arguments, the ones focused upon in the oral argument will likely be fewer in number. That's typical, as you can't hit everything in a time-tight oral argument.
As one looks at all of the original legal arguments and the new issues from the release of the Fastow notes, it is clear that the court will have a good bit to consider. And perhaps one item that might be lingering in some minds, is the continuing question as to why the government didn't object to Fastow's argument for a sentence below the agreed upon terms of the plea agreement. Tom Kirkendall at Houston ClearThinkers (see here) pointed out one segment from the Skilling trial when Fastow was on redirect examination and he answered questions as follows:
Q. And what is the minimum amount of time that that plea agreement calls for?
A. It calls for a 10-year sentence.
Q. So after January 14th, can your cooperation lower that 10 years?
A. My understanding is that I will be sentenced to 10 years. The Judge ultimately has a discretion; but in my plea agreement, I agreed to the 10-year sentence."
Andy Fastow, however, received a sentence of six (6) years. This was despite a provision in the plea agreement that stated:
"The parties agree that Defendant's sentence under the Sentencing Guidelines shall include 120 months in the custody of the Bureau of Prisons. Defendant agrees that he will not move for a downward departure from the offense level or the guideline range calculated by the Court and that no grounds for a downward departure exist."
And the government did not object. Why?
The following are links to key posts from this blog that relate to the forthcoming argument, and the briefs that have been filed.
Also check out Larry Ribstein's Ideoblog here