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April 6, 2011

Fifth Circuit makes former Enron CEO Skilling's SCOTUS victory Pyrrhic

As detailed in this Reutersreport, "[f]ormer Enron Chief Executive Jeffrey Skilling was unsuccessful in his latest bid to overturn his criminal conviction as a U.S. appeals court called any errors in his trial 'harmless.'"  Here is how the Fifth Circuit's opinion in US v. Skilling, No. 06-2088 (5th Cir. April 6, 2011) (available here), gets started:

Former Enron Corporation CEO Jeffrey K. Skilling was convicted of conspiracy, securities fraud, making false representations to auditors, and insider trading.  After we affirmed his convictions, the Supreme Court invalidated one of the objects of the conspiracy charge — honest-services fraud — and remanded, instructing us to determine whether the error committed by the district court in submitting the honest-services theory to the jury was harmless as to any of Skilling’s convictions.  Because we find that the error was harmless, we affirm the convictions.  In addition, for the reasons stated in our previous opinion, we vacate the sentence and remand for resentencing.

So while Skilling's trip to the Supreme Court created some important new federal criminal law, it appears that he will get no substantive relief from the SCOTUS ruling in his favor last year.  That all said, Skilling's High Court success might not end up being completely for naught, as he still has a resentencing ahead and perhaps he can contend that he deserves some measure of sentencing credit for his troubles.

Meanwhile, I would be surprised if resentencing is the next development in the long-running Skilling saga.  I would expect Skilling's lawyers to seek en banc and/or certiorari review of today's Fifth Circuit panel holding.  But if further review of his convictions are not forthcoming, then Skilling's case will become a high-profile resentencing proceeding; as some may recall, the Fifth Circuit reversed in a prior opinion a key guideline determination that led in part to Skilling's original 24+ year (within-guideline) prison term.

UPDATE:  Over at White Collar Crim Prof blog, Ellen Podgor has this lengthy new post titled "Commentary on Skilling Remand Decision."

April 6, 2011 at 10:32 PM | Permalink


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About ten months ago, when the SCOTUS decided Skilling, I said to the estimable Marc Shepherd, "It's better than 50-50 that the instructional error will be found harmless, and even if not, I'll bet you a steak dinner in Manhattan that (1) all the rest of the convictions will stand, and (2) he'll get the same sentence he's got now."

Thus far I'm batting 1000, and I kinda like my chances on resentencing, too. I don't think the district court will be impressed with the "trouble" Skilling took to try to palm himself off as an unlucky businessman, but will remain quite impressed with Skilling's astounding and rapacious greed.

Posted by: Bill Otis | Apr 6, 2011 11:23:12 PM

and if worse comes to worse he can drag them back in front of the supremes and they can explain what part of redo this didn't you understand!

Posted by: rodsmith | Apr 7, 2011 1:18:33 AM

rodsmith --

And I'll bet YOU a steak dinner that the SCOTUS denies cert and that Skilling gets a minimum of 90% of the sentence he got the first time (more likely 100%).


Posted by: Bill Otis | Apr 7, 2011 7:40:15 AM

Is an appeal and the "troubles" it causes grounds for a lesser sentence? If post-conviction rehabilitation is not a consideration, I don't see how complying with the established legal procedure could possibly be (legitimate) grounds.

Posted by: Bill B. | Apr 7, 2011 10:03:03 AM

no way bill! not considering the neo-nazi's who now run the govt here and the courts! that's a rigged bet to be sure!

guess you will have to buy your own dinner....just watch out there are no transfats in it the health nazi's might get you!

Posted by: rodsmith | Apr 7, 2011 11:27:55 AM

It doesn't take a fortune teller to predict that the Fifth Circuit would seek out any possible rationalization to uphold a conviction. For them, virtually all errors by prosecutors are "harmless," which seems to mean in practice that the error only harmed the defendant.

Before re-sentencing, though, Tom Kirkendall pointed out that "now Skilling finally gets his opportunity for the first time to seek a new trial on the egregious prosecutorial misconduct ... that was uncovered after the conclusion of the first trial." There's a long way to go before this fiasco is over.

Bill wants Skilling convicted for his "greed," but in America the profit motive is not a crime. And as it turns out, nor was "honest services fraud."

Posted by: Gritsforbreakfast | Apr 7, 2011 12:45:24 PM

"Bill wants Skilling convicted for his 'greed,' but in America the profit motive is not a crime."

I'll have to remember that the next time (and it won't take long) I hear from "progressives" that the profit motive most certainly IS a crime. Anyone who ever had an SDS chapter on campus knows that one by heart.

But I digress. For those not of the progressive persuasion, the profit motive is no crime -- unless accomplished by fraud, as Skilling did on a massive scale, swindling thousands of victims.

He got a well deserved, fat jail sentence for it last time and he's going to this time too. I'm open to bets from those who think otherwise.

Posted by: Bill Otis | Apr 7, 2011 2:32:20 PM

Wow, this is too cool. I am very like it, Thank you for sharing, let me so happy!

Posted by: Big pony | Apr 11, 2011 6:06:07 AM

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