Skilling to seek retrial based on ‘newly discovered evidence’

By Mike Tolson

Former Enron CEO Jeffrey Skilling’s appellate battle apparently will continue with what his attorney says is “newly discovered evidence.”

In a motion for a time extension filed last week, Daniel Petrocelli asked to have until August 17 to submit Skilling’s latest brief. The two-page motion refers to Skilling’s intent to ask for a new trial based on the new evidence but includes no description of what the evidence is.

A hearing on the request for more time will be held June 7 before U.S. District Judge Sim Lake.

Petrocelli could not be reached for comment. He and Skilling’s defense team has long complained of what it claims was misconduct by the Enron task force assembled by the U.S. Justice Department after the stunning collapse of the one-time energy giant in 2001.

Last month, the U.S. Supreme Court turned down Skilling’s request for a new trial that had been based on its previous ruling tossing out one of the legal theories used to convict him.

Skilling had appealed to the Supreme Court after the U.S. 5th Circuit Court of Appeals ruled that the theory in question — an “honest services” statute that the high court had said was inappropriate for this type of case — amounted to a “harmless” error and there was plenty of evidence to support his conviction on other grounds.

Skilling, who is currently housed in a federal prison in Colorado, had argued the honest services theory prosecutors used during his trial was so pivotal to the jury’s consideration that only a new trial could rectify the injustice.

The Supreme Court disagreed, which appeared to clear the way for Lake to resentence the 58-year-old Skilling. A revision of his original 24-year prison sentence has been in limbo since the 5th Circuit ruled in 2009 that sentencing guidelines were improperly applied in his case. The water was further muddied in 2010 when the Supreme Court invalidated the honest services prosecution theory, though it is unclear whether that ruling will influence the new sentence.

Federal judges are assisted by sentencing guidelines, the purpose of which is to eliminate disparities for defendants convicted of similar crimes. The 5th Circuit found the district court used an improper enhancement in assessing Skilling’s original sentence by considering Enron a financial institution.

The opinion of legal experts has been that Skilling is likely to have his sentence reduced. Two white-collar crime specialists calculated last year that if the enhancement measures are not used and Lake opts for the bottom range of potential sentences, as he did the first time around, Skilling would end up with a sentence between 15 and 16 years.