Wednesday, April 6, 2011
The Fifth Circuit issued its decision on the Skilling remand here.
The US Supreme Court had "invalidated one of the objects of the conspiracy charge - honest-services" and sent it back to the 5th Circuit to determine if the error was harmless. The 5th Circuit ruling today found it to be harmless error, and they now sent the case back to the trial court for resentencing.
The 16-page decision commences with a review of how to analyze harmlessness of an alternative-theory error. The court concludes that "based on [its] own thorough examination of the considerable record in this case, we find that the jury was presented with overwhelming evidence that Skilling conspired to commit securities fraud, and thus we conclude beyond a reasonable doubt that the verdict would have been the same absent the alternative-theory error." The court later states that because it finds "that the alternative-instruction error in this case was harmless with respect to the conspiracy conviction, it follows that Skilling has no basis on which to challenge the remaining convictions."