Prosecution finishes with Skilling
Government concludes by saying ex-Enron CEO left company because he knew it was headed for disaster; defense tries to rebut.
HOUSTON (CNNMoney.com) - After almost three days, the prosecution wrapped up its cross-examination of former Enron chief executive Jeffrey Skilling at his fraud trial Wednesday, but not before accusing the defendant of misrepresenting the real reason he left Enron in August 2001.
Government prosecutor Sean Berkowitz provided a chart of 10 different reasons Skilling has given for his abrupt departure ranging from sheer exhaustion to concerns that he had lost credibility with the market to a cryptic reference to an issue with one of his children. The government contends that Skilling left as he realized that the company was headed for trouble and wanted to leave before he had to resign in disgrace.
And under questioning, Skilling admitted that he had been approached by a headhunter after he left Enron regarding taking over the chief executive position at Lucent but he denied that he ever considered taking another CEO position at any company at the time.
"Did you leave Enron because you thought it was a sinking ship?" lead defense attorney Daniel Petrocelli asked as he began his re-direct. "That is not the case," Skilling responded adamantly.
He also testified that he didn't believe he was smart enough to fool the jury and was thankful that "the documents (presented during the trial) much closely fit my recollection of what happened at Enron Corp. than not.
Petrocell seemed to speed through his re-direct -- likely at the behest of Judge Sim Lake who has made it clear to both sides to keep their questioning brief. He went point-by-point through the allegations the prosecutions launched at Skilling on cross.
Skilling denied that he ever sold stock or directed his wife Rebecca -- then his girlfriend -- or his ex-wife Susan to sell stock after a deal between Enron and an Arab consortium to buy the company's international assets fell through in the fall of 2000.
He also scoffed at a document that former financial chief Andrew Fastow testified he showed Skilling at the same meeting he said Skilling had expressed concern about disclosing the LJM partnerships on the company's financial statement.
Skilling ridiculed the document, which was a list Fastow made that he claimed were talking points of his discussion with Skilling and included requests for more perks at Enron due to their secret side deals.
"To think that someone could even put these on a piece of paper... This would have elicited a very negative reaction from me," Skilling said incredulously. "Andy used to tell a lot of jokes. For all I know this is the script for comedy skit."
Skilling testified Tuesday that he had never had a problem with disclosing anything and at the meeting he only spoke to Fastow about choosing between his roles at Enron and LJM.
Under cross-examination earlier in the day, Skilling denied that the company moved portions of its retail energy business into its more profitable wholesale energy operation in order to hide millions of dollars in losses.
Skilling, whose infamous temper flared up on the stand Tuesday, was far more subdued and deferential -- although signs of frustration began to appear by midday Wednesday -- as he politely but firmly disagreed with government prosecutor Sean Berkowitz that the retail business was even suffering from losses.
The government contends that Skilling manipulated earnings by masking losses from poor performing businesses in order to maintain the image that Enron was showing strong growth across the board.
Berkowitz presented testimony from David Delainey, the former head of Enron Energy Services (EES), that vastly differed from Skilling's own recollections on the stand.
Delainey testified in February that he took over the troubled retail business and decided to move over $200 million in losses into wholesale to avoid reporting a loss in the unit for the first quarter of 2001. He testified that it was Skilling who pushed the move into wholesale, which could absorb the losses with no impact to earnings, despite Delainey's views that such a transfer "lacked integrity."
Skilling, however, maintained that the decision to move parts of its retail business was in order to improve efficiencies as the operation was growing, and testified that the decision was proposed by Delainey in the first place.
When Berkowitz challenged the $240 million reserve that the wholesale business took to cover potential losses from the retail business, Skilling brushed aside the reserve, saying wholesale was being cautious because it wasn't as familiar with the risks associated with the retail business.
He added that if EES had remained a free-standing entity, he believed there would have been "a high likelihood of no loss" for the unit in the first quarter.
A little more easy-going
Throughout his early morning testimony, Skilling was careful to remain calm even as Berkowitz prevented him from going into lengthy explanations of why he disagreed with the government's presentation of evidence.
Berkowitz warned Skilling early in the morning that he wanted him to reserve his answers to "yes" or "no," saying that he had sat through four days of testimony on direct examination and any explanations could wait until the defense's re-direct.
Skilling remained humble and apologetic whenever he veered into explanations and was cut off by Berkowitz. At one point, he asked politely "May I say something? No? Okay," eliciting brief smiles from jurors.
Of course, Skilling isn't known to keep his cool for long and as Berkowitz began questioning him on Enron's description of itself as a logistic company – rather than a riskier trading company as the government contends – Skilling began to become frustrated.
The government contends that Enron misled the public by not informing them that a large portion of the company's profitability in its wholesale operation came from speculative trading. Trading companies are considered a riskier play in the market for investors. By calling itself a logistics company, the government says Enron was attempting to get a higher price-earnings multiple.
But Skilling vehemently denied that Enron misled investors and stood by his belief that the company was first and foremost a logistics company. He dismissed media articles that raised questions about the speculative trading and became frustrated when Berkowitz accused him of firing an employee who distributed one of the offending documents.
"That is absolutely untrue," Skilling said incredulously. "Where did that come from?"
His frustration mounted as Berkowitz continued his examination, accusing Skilling of giving investors an incomplete and misleading story on the level of risk it was assuming in its energy trades. Skilling for, his part, accused the prosecution of not giving the jury the full picture on how risk was calculated at Enron.
At one point, when Berkowitz showed a chart measuring value at risk (VAR) -- which Skilling has defined as a measure to determine how much risk is being assumed but says should be shown in conjunction to the volume of trades the company makes -- Skilling asked "You're going to compare this with volumes, right?"
Upon getting no response from Berkowitz, Skilling sighed and rolled his eyes. "I guess we'll have to do that," he added sarcastically.
Despite some agitation, his demeanor was still a far cry from Tuesday when he finally broke out into anger when Berkowitz attempted to move on from a line of questioning without letting Skilling offer an explanation.
Berkowitz, who maintained his calm through Skilling's outburst, said "I know that you at times overreact to people who are critical, but if you could, just let me ask the questions and move along, Mr. Skilling."
Skilling made a sarcastic face but said nothing as he struggled to control his emotions.
The crack in Skilling's composure is particularly significant because his case is built almost entirely on the testimony of former executives who portrayed him as a man so obsessed with meeting Enron's earnings targets that he created an environment of corruption within the company and tolerated no resistance to his wishes.
In the absence of any solid documentation to prove that Skilling and his co-defendant, Enron founder Kenneth Lay, masterminded a massive fraud that toppled Enron in late 2001, jurors will have to measure the credibility of Skilling's testimony versus the 22 other government witnesses who have testified against him.
In a case of "he-said, she-said," it all comes down to who the jury believes. And for Skilling, his believability is tied to his likability.
Skilling faces 28 charges of conspiracy, fraud and insider trading while Lay, who is expected to take the stand as early as next week, faces six counts of conspiracy and fraud.
Legal experts say the defendants could face 20 to 30 years behind bars if convicted of the charges. Lay will also face an additional trial for bank fraud once jurors begin deliberations on the current trial.
Enron was once the seventh-largest corporation in the U.S. It declared bankruptcy in December 2001, costing 4,000 employees their jobs and resulting in billions in losses for investors.
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