Lea Fastow Rejects Deal

Wow. Enron wife Lea Fastow turned down the plea deal and will go to trial on Feb. 10.

All we can say is she has one of the best criminal defense lawyers in the country--Mike DeGeurin--and if he's supporting her decision, it's very likely the Government's case is weak. The rejection very well may be a statement by the defense that avoiding the risk of losing at trial was worth a five month sentence and not a day more. Even though she faces years in prison if she's convicted.

Lea Fastow is charged with six counts, including conspiracy to commit wire fraud and money laundering, aiding and abetting and filing false tax returns. Her Indictment is here (pdf).

If she's convicted, she will be sentenced in accordance with the Federal Sentencing Guidelines. The guidelines initially will be calculated according to the dollar amount of any fraud or loss to the victims, the dollar amount of any laundered money and the dollar amount of the tax evasion. Plus, she would be held accountable for all relevant conduct.

She could even be sentenced for conduct she was acquitted of, in the event a jury returned a verdict of guilty on less than all counts. U.S. Sentencing Guidelines Manual § 1B1.3(a)(2) requires a court to consider all such conduct done in connection with any larger course of criminal conduct of which the offense of conviction was a part. Courts can consider conduct of which a defendant was acquitted for sentencing purposes, so long as the conduct is proven by a preponderance of the evidence. United States v. Watts, 519 U.S. 148 (1997). In other words, the reasonable doubt standard applies only at trials, not at sentencings.

The penalties for aiding and abetting are the same as those for the principal. [Note: if the guidelines in effect at the time of her crime were less than they are are at the time of sentencing, and the Court finds using the current guidelines would present an ex post facto problem, she would be sentenced under the guidelines in effect at the time of her crime.] For a primer on how the guidelines work, go here (pdf).

So, what's it mean? Either the defense had good reason to believe that in the event of a conviction, the Probation Department and/or Judge would calculate the guidelines much higher than the five months called for in the plea bargain, making the plea bargain nothing more than a fast trial at which they give up their chance at presenting a defense--or they think they have an almost sure shot at a complete win. Of course, there is another option: Mrs. Fastow is in denial and rejected not only the plea bargain, but her lawyer's advice to take it.

These are some high stakes for Mrs. Fastow. Even a few years of not seeing your kids is a lot better than being in prison so long you miss their high school proms, graduations and other irreplaceable milestones in their lives, not to mention the joy of being there as they grow up. As a kid, even losing a parent for a few years is better than having them miss years and years of your life.

If we had to bet at this point, and it's just speculation as we have zero inside knowledge, only a lot of knowledge about federal criminal cases and the sentencing guidelines, we'd say De Geurin has a very, very strong defense and the Government's case is weak. He's so good--with clients and trying cases--and so smart--that we just don't buy that Mrs. Fastow rejected his advice.

We wrote this pretty fast, and pretty late at night, so we reserve the right to make corrections and change our mind upon further reflection. For example, if DeGeurin files a motion to withdraw as Mrs. Fastow's lawyer in the coming weeks, that will signal something different to us. How's that for covering our bases? But the operative word to us about this news is still, Wow.

Update: The parties are still talking, trying to come up with another deal:

The attorneys haven't stopped trying though, said Mike DeGeurin, Lea Fastow's lawyer. Enron Task Force prosecutors and defense attorneys will keep talking long-distance over the weekend to find a way to resolve the cases.

Update: We think the government should let Mrs. Fastow plead to a tax misdemeanor. That way her jail exposure is limited to 12 months, no matter what the guidelines for relevant conduct specify.

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