06-20885

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JEFFREY K. SKILLING, Defendant-Appellant.

DEFENDANT-APPELLANT JEFFREY K. SKILLING’S PETITION FOR PANEL REHEARING

On Appeal From The United States District Court For The Southern District Of Texas, Houston Division

Crim. No. H-04-25 (Lake, J.)

O’MELVENY & MYERS LLP WALTER DELLINGER JONATHAN D. HACKER MEAGHAN MCLAINE ANTON METLITSKY 1625 Eye Street, N.W. Washington, D.C. 20006 RONALD G. WOODS 5300 Memorial, Suite 1000 Houston, Texas 77007

O’MELVENY & MYERS LLP DANIEL M. PETROCELLI M. RANDALL OPPENHEIMER MATTHEW T. KLINE DAVID J. MARROSO 1999 Avenue of the Stars, 7th Floor Los Angeles, California 90067 Telephone: (310) 553-6700 Facsimile: (310) 246-6779

ATTORNEYS FOR DEFENDANT-APPELLANT JEFFREY K. SKILLING

CERTIFICATIE OF INTERESTED PERSONS

Pursuant to S^^ C1R. R. 28.2.1 , the undersigned counsel for Defendant-

Appellant Jeffrey Skílling certifies that the following persons and entities have an

interest in the outcome of this appeal, Na. 0^-20885:

l . United States of Ameńca, Plaíńtiff Appellee;

2. Department of Justice, Counsel for Plaintiff Appellee (Steven Tyrrell,

Joseph Dauglas Wilson);

3. Jeffrey Skillíng, Defendant-Appellant;

4. O'Melveny & Myers LLP, Counsel for Defendant-Appellant Jeffrey Skillíng

(Daniel Petrocellí , Walter Dellinger, Randall Oppenheimer, Jonathan

Hacker, Matthew Kline, David Manaso, Meaghan McLaíne, and Anton

Metlitsky);

5. Ronald Woods, Caunsel for Defendant-Appellant Jeffrey Skíllíng.

Respectfully submitted,

Daniel M. Petrocellí^77efeпdc^nt-Appellatτ í .)"^ff^éy Skillírгg

1

i

TABLE OF CONTENTS

Page I. SKILLING OBJECTED TO EACH OF THE 12 SEATED JURORS ....................................................................................1 II. THE PANEL’S RULING ON SIDE DEALS AND FED. R. CRIM. P. 30(A) IS FACTUALLY AND LEGALLY IN ERROR.........................................................................7 III. SKILLING PRESENTED MORE EVIDENCE OF MISCONDUCT......................................................................................12

ii

TABLE OF AUTHORITIES

Page(s) CASES

Bailey v. U.S., 278 F. 849 (6th Cir. 1922) ......................................................................................9

Bruno v. U.S., 259 F.2d 8 (9th Cir. 1958) ............................................................................. 11, 12

Gillibeau v. City of Richmond, 417 F.2d 426 (9th Cir. 1969) ................................................................................11

Harris v. Reed, 489 U.S. 255 (1989) .............................................................................................11

Marson v. U.S., 203 F.2d 904 (6th Cir. 1953) ..................................................................................9

Matthews v. U.S., 485 U.S. 58 (1988) ...............................................................................................12

Mayola v. Alabama, 623 F.2d 992 (5th Cir. 1980) ......................................................................... 1, 4, 6

Moore v. U.S., 356 F.2d 39 (5th Cir. 1966) ....................................................................................9

Pamplin v. Mason, 364 F.2d 1 (5th Cir. 1966) ......................................................................................4

Parks v. Pavkovic, 753 F.2d 1397 (7th Cir. 1985) ..............................................................................11

Smith v. Phillips, 455 U.S. 209 (1982) ...............................................................................................6

U.S. v. Beckner, 69 F.3d 1290 (5th Cir. 1995) ..................................................................................6

U.S. v. Chagra, 669 F.2d 241 (5th Cir. 1982) ..................................................................................5

U.S. v. Davis, 583 F.2d 190 (5th Cir. 1978) ..................................................................................5

U.S. v. Gill, 909 F.2d 274 (7th Cir. 1990) ................................................................................11

U.S. v. Lake, 472 F.3d 1247 (10th Cir. 2007) ..............................................................................7

U.S. v. Mata, 491 F.3d 237 (5th Cir. 2005) ................................................................................12

iii

U.S. v. Mendoza, 473 F.2d 697 (5th Cir. 1973) ..................................................................................8

U.S. v. Nell, 526 F.2d 1223 (5th Cir. 1976) ................................................................................4

U.S. v. Nelson, 277 F.3d 164 (2d Cir. 2001)....................................................................................4 U.S. v. Polchemi,

219 F.3d 698 (7th Cir. 2000) ..................................................................................5 U.S. v. Smyth,

842 F.Supp. 20 (D.D.C. 1994)................................................................................9 U.S. v. Soto,

519 F.3d 927 (9th Cir. 2008) ................................................................................11 U.S. v. Strassman,

241 F.2d 784 (2d Cir. 1957) ...................................................................................9 U.S. v. Toner,

173 F.2d 140 (3d Cir. 1949) ...................................................................................9 U.S. v. Watson,

894 F.2d 1345 (D.C. Cir. 1990)..............................................................................9

STATUTES, RULES AND REGULATIONS

FED. R. CRIM. P. 30........................................................................................... passim

OTHER AUTHORITIES

2A WRIGHT, FEDERAL PRACTICE & PROCEDURE § 482 (2000)..................................9

1

Jeffrey Skilling petitions the panel that heard his appeal to grant panel

rehearing to address, at the very least, several factual and related legal errors that

underlie several critical holdings that the panel reached in affirming his

convictions. Skilling has filed a petition for rehearing en banc as well.

I. SKILLING OBJECTED TO EACH OF THE 12 SEATED JURORS.

After examining the “unique circumstances of this case,” the panel reached

the “rare[],” and yet indisputably correct, conclusion that Skilling was entitled to

the “presumption” that jurors in Houston had prejudged his guilt. Op.43-46.1 This

finding means that bias “so saturated” Houston “as to render it virtually impossible

to obtain an impartial jury.” Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir.

1980). Given this ruling, Skilling’s convictions could be affirmed only if the Task

Force met its “very difficult” burden of proving that each seated juror was

“impartial.” Id. at 1001; Op.46.

In evaluating whether the Task Force met its burden of showing that all 12

seated jurors were impartial, the panel held that Skilling “failed to challenge for

cause all but one of the jurors [Juror 11],” and that, in so doing, he “waived most

of his argument.” Op.49-50, 42. As the record below shows and explained in his

briefing, however, Reply 119 n.63, Skilling challenged the entire jury, objected to

1 Emphases in this brief have been added unless otherwise noted. Citations to

the panel slip opinion are to “Op.”; citations to Skilling’s opening brief are to “Br.”; citations to his reply are to “Reply”; and citations to the Task Force’s brief are to “U.S.Br.” All other citation conventions are explained at Br.1 n.1.

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six seated jurors (in addition to No. 11), objected to the court’s failure to grant him

additional peremptories, and objected to not being able to voir dire each juror fully.

THE COURT: Is there any objection to the jury as constituted? [LAY’S COUNSEL]: Yes, Your Honor. And I’d ask that this part of the record be sealed so it’s not publicly disseminated that we’re objecting to the seated juror…. [I]f we had six additional peremptory challenges, we would strike Juror Number 20, 38, 63, 67, 78 and 84. So we respectfully object to those venirepersons being seated as jurors. THE COURT: Objection is overruled. [SKILLING’S COUNSEL]: And we join in that objection, your Honor. And, for the record, we also add the objection that we were not permitted to fully voir dire each of the jurors. THE COURT: Okay, well I disagree with that, but the objection is overruled. [LAY’S COUNSEL]: Will the Court file my objection? THE COURT: Yes. Trial Tr. at 3 (Jan. 30, 2006; 4:48 p.m.) (sealed).

These objections were made while these jurors were seated in the jury box at the

end of voir dire. They were made before the district court dismissed the jurors for

the day, before it swore them in, before it gave them preliminary instructions, and

before counsel made opening statements the next day. Id.; R:14686-99, 14751.

We cannot determine whether the panel overlooked this transcript page (the

Task Force clearly did, U.S.Br.148; Reply 119 n.63), or whether it did not

appreciate its relevance. In either event, the panel asserted that Skilling effectively

kept “an ace up his … sleeve by acquiescing to jurors at trial and then arguing

error on appeal,” thereby depriving the Task Force of “the opportunity to respond”

and the district court of the ability “to correct any possible errors.” Op.50 n.53.

Skilling did no such thing. He sought, but was denied the opportunity by the

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district court to examine each juror further, and he specifically objected to the

panel and to six jurors in addition to Juror 11. Despite comments these jurors

made evincing prejudice (examples below), neither the Task Force nor the district

court questioned them, and yet the panel refused to consider these jurors’ biases.

Juror 20

“It makes me angry that so many people lost their jobs and their retirement savings.” “The involuntary loss of the 401k savings made the most impact on me, especially because I have been forced to forfeit my own 401k funds to survive layoffs.” JQ-20.

Juror 38

Felt “bad for those that worked hard and invested in the corp. only to have it all taken away.” JQ-38.

Juror 63 “I think they probably knew they were breaking the law.” JQ-63.

On this record, and in light of Skilling’s repeated objections and his use of

all his peremptory challenges,2 it is impossible to conclude that he “‘intentional[ly]

relinquish[ed] or abandon[ed] a known right.’” Op.50 n.53. In none of the voir-

dire cases that the panel cites to support its waiver holding, id., had the defendant:

made the repeated objections Skilling made; objected to the jury panel as a whole, and to specific jurors as well; or most importantly, proven that community animus was so pervasive that

prejudice had to be presumed of every juror.

Also erroneous in the panel’s waiver analysis is the way it alleviated the

Task Force of its burden to show that each juror was impartial—instead, requiring

Skilling to show (at trial and on appeal) that each juror was, in fact, prejudiced.

2 R:2600-78, 4027-62, 12036-83, 14000-34, 14174-244 (venue motions); R:8369-91, 9513-20, 9748-51 (jury questionnaire); R:11050-53, 11804-05, 12037, 12067, 12990-13007 (voir dire); R:14461-62, 14499, 14513-14, 14566, 14612, 14677-78, 14682 (seeking additional peremptories); R:12074-76, 14174-244 (relief related to Causey plea); R:14179-244 (seeking writ relief from this Court).

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This conflates an actual prejudice case (in which Skilling bears the burden of

affirmatively proving prejudice), with a case where presumed prejudice has been

established (in which the government bears a “very difficult” burden of proving

complete impartiality and voir dire is subject to heightened scrutiny). Mayola, 623

F.2d at 1001; Pamplin v. Mason, 364 F.2d 1, 6-7 (5th Cir. 1966).

The premise of the panel opinion is that if Skilling had just objected to jurors

other than Juror 11, the district court would have cured the prejudice or eliminated

any doubt with further voir dire. The trial court’s handling of voir dire and “for

cause” challenges shows otherwise. As one example, Juror 10 (who served on the

jury) lost money because of Enron’s collapse, worked with former Enron

employees, attributed Enron’s collapse to “greed and mismanagement,” thought

defendants were “suspect” because of “what I see on television,” and said he

would not tell others if he ever voted to acquit. The district court cut him off:

“Can you conscientiously follow my instruction that they’re presumed to be

innocent?” The response, which the district court erroneously accepted, was: “I

think so.” Reply 121-22. Such “pallid” responses are not “good enough”—even

where prejudice is not presumed. U.S. v. Nell, 526 F.2d 1223, 1230 (5th Cir.

1976); U.S. v. Nelson, 277 F.3d 164, 202 (2d Cir. 2001).

The court also denied cause challenges to jurors who stated they personally

lost money as a result of Enron’s collapse (Jurors 29, R:14491, and 101, JQ-101).

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“[A] court must excuse a juror for cause ... if the juror has even a tiny financial

interest in the case,” U.S. v. Polchemi, 219 F.3d 698, 704 (7th Cir. 2000).3

The only way the district court justified not striking such jurors was to

violate the rule that voir dire is meant to explore a juror’s attitudes—“not to

convince him that he would be derelict in his duty if he could not cast aside any

preconceptions.” U.S. v. Davis, 583 F.2d 190, 197 n.7 (5th Cir. 1978). For

example, when Juror 101 said she was “unsure” she could be fair, the court said:

“What we want are people who can base their decision on the facts that they hear

in the courtroom…. [W]ill you be able to base your decision on what you hear in

court?” Her answer: “probably.” The court pressed again: “[C]an you in your

heart of hearts assure us that you will base your decision on what you hear in this

courtroom?” Her answer: “It will be based on what I hear in the courtroom.”

Br.164-65. By signaling the correct answer and seeking it repeatedly, the court

improperly led the juror. Chagra, 669 F.2d at 254 n.14.

Worsening the error, even though district courts may not rely on such self-

assessments of impartiality, that is exactly what the district court did here—as the

3 Juror 101, on whom Skilling had to waste a peremptory challenge (as he did

with No. 29), also said: I am “[a]ngry.” “The top folks [at Enron] got too greedy.” Defendants “knew what was going on, sold their shares.” “[Given] the amount of money involved and the amount of people that were affected and for nobody to know what was going on, it just doesn’t seem possible that somebody didn’t know something.” Skilling is guilty because “everything I’d seen on TV and a lot of stuff that was in the ‘Wall Street Journal.’” “I was surprised” that venue had not been changed in this case. JQ-101; R:14653-57.

6

Task Force not only admitted, but openly advocated:

TASK FORCE: Your Honor, we have to take her at her word. When she had previously said earlier what her opinions were, and she said earlier what her opinions were, and that based upon the law, they’ve changed. That’s what we ask of our jurors. COURT: I agree. [The defense motion for cause] is denied. R:14498-99. TASK FORCE: Again, Your Honor, we have to take them at the word, and that’s the way we’ve been doing it. And she said she could. COURT: The [defense motion for cause] is denied. R:14566.4

As here—where prejudice had to be presumed of every juror, there was

likely subconscious bias even among those who did not admit it, and there were

significant risks of “stealth” jurors looking to campaign their way on to the jury—it

was the district court’s obligation to distrust such assurances.5 It did the opposite.

Finally, many of these problems exist, of course, because the trial court

failed to recognize a presumption of bias among Houston jurors. Believing that

every juror was just as likely to be impartial as not, the trial court accepted their

representations that they would be fair. But as this panel held, that assumption was

incorrect: the trial court should have assumed that each juror would not be able to

act impartially toward Skilling, despite assurances to the contrary. Op.48. Having

4 Compare U.S. v. Beckner, 69 F.3d 1290, 1292-93 (5th Cir. 1995) (reversing

conviction where district court “allow[ed] jurors to decide their own impartiality”); Mayola, 623 F.2d at 1001 (burden to rebut presumed prejudice may “not be satisfied merely by the jurors’ assurances on voir dire of their own impartiality”).

5 E.g., Smith v. Phillips, 455 U.S. 209, 221-22 (1982) (O’Connor, J., concurring); Br.150-53, 167-68 (potential jurors call asking to serve on Skilling’s case); id. 170 (actual juror (No. 64) “repeatedly made comments” to co-workers that “she was very interested in serving on the Enron jury”); Reply 114.

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corrected the erroneous premise on which the trial court’s assessments of prejudice

rested, the panel should have recognized the conclusion that follows, and held that

Skilling’s explicit objections to the entire panel, as well as to seven individual

jurors, required the Task Force to prove that each panel member was completely

impartial. The Task Force, of course, did not and cannot carry this heavy burden.

II. THE PANEL’S RULING ON SIDE DEALS AND FED. R. CRIM. P. 30(a) IS FACTUALLY AND LEGALLY IN ERROR.

A crucial aspect of the case against Skilling was the allegation that he made

“secret side deals” with Andrew Fastow, in Fastow’s capacity as general partner of

LJM. Those side deals, the Task Force argued, vitiated the accounting treatment

for a number of transactions, rendering false various statements made by Enron,

and entitling the jury to convict Skilling on every count in the case. Br.106-08.

Given the centrality of this theory to the Task Force’s case, Skilling sought an

instruction on the actual SEC and accounting rules governing such deals, to

support his defense that the accounting treatment was correct and the related

disclosures were proper. The district court declined to give Skilling’s requested

instruction—or any instruction on side deals—and Skilling challenged that ruling

on appeal, arguing that such instructions are vital to any defense in a complicated

accounting fraud case, as the Tenth Circuit recently held in reversing convictions

in the “Enron of Kansas” case. U.S. v. Lake, 472 F.3d 1247, 1263 (10th Cir. 2007).

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The panel opinion did not address Skilling’s argument on its merits; instead,

it ruled that Skilling’s appellate challenge was foreclosed because he presented his

proposed instruction to the district court after the date set for submitting draft

instructions: March 31, 2006. The panel opinion incorrectly reasoned: this date for

submitting instructions was “mandatory” under FED. R. CRIM. P. 30(a); Skilling

missed the deadline; even though the district court never said the deadline was

mandatory or that it was rejecting Skilling’s side-deal instruction as untimely, the

instruction was untimely; and, thus, Rule 30(a) bound this Court’s hands, such that

it could not review Skilling’s claim of error on appeal. Op.38-39. This ruling is

legally and factually in error.

The panel held the March 31 date was “mandatory,” citing two authorities:

Rule 30(a) and U.S. v. Mendoza, 473 F.2d 697 (5th Cir. 1973). Op.38. But neither

the text of Rule 30(a) nor Mendoza provides that 30(a) time limits are mandatory—

just the opposite. Mendoza, which was decided some 30 years before recent

amendments to Rule 30, was referring to what is now codified as Rule 30(b). Rule

30(a) then—which is Rule 30(b) now—“require[s] the Trial Judge, before closing

argument, to inform counsel what action he will take relative to the requested jury

instructions.” Mendoza, 473 F.2d at 700. It is, of course, “mandatory” for the

court to inform the parties how it intends to rule on requested instructions, because

that requirement enables counsel to “intelligently argue the case to the jury.” Id.

9

Rule 30(a) time limits are different—and not mandatory. Those limits exist

to permit the court “the opportunity to present the case to the jury with complete

fairness to the parties and after full consideration of their claims as to their

theories, the law, and the facts applicable.” Marson v. U.S., 203 F. 2d 904, 912

(6th Cir. 1953). To ensure that the trial court may afford “complete fairness to the

parties,” it has “discretion to consider requests that are not submitted in compliance

with the timeliness requirement of Rule 30.” U.S. v. Smyth, 842 F. Supp. 20, 24-25

(D.D.C. 1994) (citing U.S. v. Watson, 894 F.2d 1345, 1350 (D.C. Cir. 1990).6

Indeed, this Court has held that a district court does not abuse its discretion by

considering a defendant’s requested instruction filed not only after “the close of

evidence,” but after the court read its charge, Moore v. U.S., 356 F.2d 39, 42-43

(5th Cir. 1966); 2A WRIGHT, FEDERAL PRACTICE & PROCEDURE § 482 (2000).

The March 31 deadline for submitting proposed jury instructions came in the

middle of trial, just as the Task Force ended its case-in-chief, defendants were

about to begin their case, and before the Task Force proffered its rebuttal case.

Skilling submitted his side-deal instruction on May 10, 2006. This was:

just two days after both sides rested their case (May 8) a full week before closing arguments (May 15); before two separate hearings on jury charge issues (May 10 and May 12);

6 Accord U.S. v. Strassman, 241 F.2d 784, 787 (2d Cir. 1957); U.S. v. Toner,

173 F.2d 140, 142 (3d Cir. 1949); Bailey v. U.S., 278 F. 849, 854 (6th Cir. 1922).

10

and before the district court provided the parties with draft jury charges and made revisions based on their comments (May 11 and 13). R:34904, 36439, 36002-44, 36308-14, 36320-82, 38062-63, 41327-29.

As the Task Force admits, “the district court did not explain its reasons for

rejecting the [side deals] instruction,” U.S.Br. 129, much less cite Rule 30 or

timeliness concerns. In fact, the record makes clear that the court repeatedly

considered requests submitted after March 31—which was, after all, barely

halfway through the five-month trial, just days after the Task Force rested its

opening case, and before the defense case began. Nor did the Task Force ever

object to Skilling’s side-deal instruction—or any instruction—as untimely. Rather:

On May 5, Skilling submitted a proposed instruction that compliance with generally accepted accounting principles (“GAAP”) is evidence that Skilling’s conduct was “not materially false or misleading.” R:34569. The Task Force did not object on timeliness grounds. At the May 10 conference—the same conference at which the district court rejected the side-deal charge—the court agreed with Skilling that its instructions should include language reflecting Skilling’s May 5 proposal. R:36018.

On May 8, in response to a colloquy with Skilling’s counsel about possible prejudice resulting from Ken Lay’s upcoming bench trial—a trial everyone knew had been scheduled for close to a year—the district court said it would “consider an instruction to the jury … if you can draft something.” R:34779. Again, no timeliness objections.

On May 12, the Task Force requested a balancing instruction to be added to its deliberate ignorance charge and objected to amendments to the “honest services” wire fraud instructions. R:38062-63.

Given the length and complexity of this prosecution (and the facts that the

Task Force did not rest its case until March 28, and Skilling did not rest his case

until May 8), it may well not have been “reasonable,” FED. R. CRIM. P. 30(a), for

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the district court to adhere strictly to its mid-trial deadline; nor did it.7 But whether

or not “it would have been well within [the district court’s] discretion to find the

proposed instruction untimely,” U.S.Br.129, the record demonstrates that it did not

do so, but continued to consider and modify instructions as late as May 13.

Even if there were ambiguity on this point, it may not be resolved in favor of

finding waiver,8 especially given that the Task Force did not object on timeliness

grounds below, and indeed submitted its own post-March 31 instructions.9 At the

very least, the effect of the panel’s opinion was improperly to decide in the first

instance a question left to the sound discretion of the district court.10

Finally, the panel opinion presents an unworkable rule. If a defendant is not

allowed to wait until he knows “whether his theory of defense would have some

7 See U.S. v. Soto, 519 F.3d 927, 935 (9th Cir. 2008) (Graber, J., concurring) (“I

emphasize that a district court might well abuse its discretion if it applied procedural requirements rigidly, even if the requirements were consistent with Rule 30.”); Bruno v. U.S., 259 F.2d 8, 9 (9th Cir. 1958) (“We think that Bruno reasonably delayed in submitting his requested instructions until he could know, from the Government’s case-in-chief, whether his theory of defense would have some support in the evidence.”).

8 Cf. Harris v. Reed, 489 U.S. 255, 264-65 (1989) (habeas court must assume that ambiguous order rested on substantive not procedural ground).

9 The panel’s suggestion that requests to amend instructions—which of course are simply requests for different instructions—are not governed by the Rule 30 time limits, Op.38 n.34, is incorrect. See U.S. v. Gill, 909 F.2d 274, 279-81 (7th Cir. 1990) (Rule 30 time limits apply to government’s request to amend charge).

10 Cf. Parks v. Pavkovic, 753 F.2d 1397, 1404 (7th Cir. 1985) (Posner, J.) (action “require[ing] exercise of ‘broad discretion’ by the district court … cannot be applied in the first instance by the appellate court except in the clearest of cases”); Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969) (same).

12

support in the evidence,” Bruno, 259 F.2d at 9—i.e., in this case, until the end of

trial—to submit instructions, he might be denied his right “to an instruction as to

any recognized defense for which there exists evidence sufficient for a reasonable

jury to find in his favor,” Matthews v. U.S., 485 U.S. 58, 63 (1988); U.S. v. Mata,

491 F. 3d 237, 241 (5th Cir. 2005).

Indeed, Skilling complained early and often that the Task Force’s side-deal

allegations were vague and ambiguous, R:139, 1406-07, and it was not until

Fastow, Skilling, and the last possible rebuttal government witness testified that he

knew what the Task Force’s final side-deal allegations would be, R:28708-12;

29901-02. As soon as that happened, and well before the jury was instructed, he

submitted a side-deal defense instruction that the Task Force has never disputed

accurately summarized the law. Reply 73. To find waiver here is inappropriate.

III. SKILLING PRESENTED MORE EVIDENCE OF MISCONDUCT.

In denying Skilling’s claims of prosecutorial misconduct, the panel

erroneously refused to consider: (1) an email in which the attorney for Tim Belden,

a former Enron executive, noted that his client “has strictly followed your

directions not to contact any of his former colleagues,” JKS-15:17; and (2) a

voicemail from Andrew Weissmann, the lead Task Force prosecutor, to counsel for

Arthur Andersen partner David Duncan, stating that since the Task Force was “not

going to direct that he speak .… I assume you’re going to have [him] assert the

13

[F]ifth,” JKS-15:3-4. The panel did not consider this evidence because it believed

that Skilling had not presented it to the district court. Op.65-66 n.68. That is

incorrect, as the Task Force itself has admitted.

These record errors are important, because both the Belden email and the

Weissmann voicemail discredit the Task Force’s supposed innocent explanations

for its interference with these two and other witnesses. Op.64-66. These

documents—which counsel for these witnesses produced in response to court-

issued subpoenas calling for evidence of witness interference, R:7524-28, 7220-

26—also are important because they corroborate the hearsay attorney declarations

submitted by Skilling’s lawyers that the district court and the panel refused to

recognize as reliable under exceptions to the hearsay rule. Op.57-60.

Skilling presented the Belden email and Weissmann voicemail to the district

court on July 29, 2005, arguing that both demonstrated prosecutorial misconduct.

Each had been produced to the court by the witnesses’ counsel—along with other

documents produced in response to subpoenas—and the district court turned over

many of these documents to Skilling’s counsel, holding others back (including the

Belden email and Weissmann voicemail) so that counsel could review the

materials and explain their relevance to the court. R.7739. The district court then:

let [counsel] go back to the jury room, two lawyers per client … sit at the jury table, and look at them. Then if any counsel thinks that any of these other documents are somehow relevant, I want you to put … a Post-It note on it with a letter. I don’t want to talk about the documents

14

in open court because they’re confidential…. But if you put a sticker on the document, we can still have a[n] in-court discussion. R.7739-40.

Skilling’s counsel flagged the Weissmann voicemail and Belden emails

because they were direct evidence of witness interference. Weissmann was urging

Andersen’s lead partner on the Enron account not to testify for the defense in an

Enron criminal trial, and Duncan’s counsel, who was a former prosecutor, found

the message so important that he saved it and had it transcribed. Belden’s counsel

was so nervous about her client violating the Task Force’s prohibition on talking to

other Enron defendants and witnesses that she requested permission for him to

send holiday cards. Skilling raised these arguments with the district court:

[COUNSEL]: The first [document] contains a statement by a representative of the Task Force saying, “We are not going to direct him to speak, and I assume that he will.” If the Court sees the language. There’s an assumption that is being communicated by the Task Force that this person will in fact invoke [his right not to testify].11

THE COURT: Speaking generically, this particular witness … wanted to send Christmas cards and network with some of these people. [COUNSEL]: The sentence we were alluding to had to do with the assurance that he’s following the strict directions of the United States Government not to talk, not to talk to the other witness.12

11 R:7748; compare JKS-15:3-4 (voicemail from Weissman: since the Task

Force was “not going to direct that [Duncan] speak … pursuant to the cooperation agreement … I assume you’re going to have [him] assert the fifth”).

12 R:7749-50; compare JKS-15:17 (“For months, Tim has strictly followed your directions not to contact any of his former colleagues…. I would like for Tim to be permitted to send Christmas cards [to colleagues] whom he has been ordered not to contact.”).

Finally, íf there were any question whether Skíllíng brought this evidence to

the district court's attentíon, the Task Force answered ít (and this is why we did not

cite the passages above ín our reply}. The Task Force conceded that "Skilling did

bring this voícemaíl to the attentíon of the district court," and never argued that

Skilling failed to present the Belden email, U.S.Br.^85 n.25, 183. ]n short, the

panel erred ín refusí^g consider this evidence and should reconsider its r^zlings. ^ ^

Dated: January 20, 2009

Respectfullτ^ubmítted,

O'MELVENY &MYERS LLPWALTER DELLINGER

JONATHAN D. HACKER

MEAGIIAN MCLAINE,AN"SON METLITSKY*1625 Eye Street, N.W.Washington, D.C. 20006

RONALD ßiÌ. WOODS

5300 Memorial , Suite 1000Houston , Teas 77007

* Admitted i^ New .York oily;supervised by principles of die firm

O'M>3LVENY &MYERS LLPDANIEL M. PETROCELLIM. RANDALE OPPENI-IEIMER

MATTHEW T. KLINEDAVID ^. M.Á^ROSO

1999 Avenue of the Stars, 7th FloorLos Angeles, California 90067Telephone: (310} 553-6700Facsimile: ( ЗΡ 10} 24^-779

.4ttorneys fog ,^]efe^d^nt-Appelfcгп tJef^^ey Skilling

^^ The panel also erred ín stating that Skilling failed to ask that witness-accessletters be sent to Belden, Císcon, and Shelby. Op.^7 n.69. Skílling's counseladvised the Court that ít had asked the Task Farce to send the letters to these andother witnesses, but the Task Ford refused to send them. MTD-R at b-7.

In addition--rand on an unrelated point, and as another example-Skíllíng notesthat in rejecting one of his sentencing arguments, the panel opinion states:"Skíllíng did not argue ... tl^e ^dístríct] court erred ín finding perjury before theSEC." Op. 99. To the contrary, and to be clear, Skilling has steadfastlymaintained that his SEC testimony was truthful.. Br.229; Reply 152-53 n,72.

IS

CERTIFICATE OF SERVICE

This is to verify that true and correct copies of the following document

(Defendant-Appellant Jeffrey K. Skïllíng's Petition ^^or Panel Rehearing} have

been filed by hand and served by both Federal Express aid electronic mail on this

20th day of January, 2008 on counsel listed below.

Matthew T. Kline

J. 1]auglas ^ílsonEnron Task ForceU. S. Attorney's Office450 Golden Gate Avenue, 11th FloarSan Francisca, CA 94102Facsimile: (4I5} 435-7234

ι

CE^RTFICAT^ 4^ C0IVIPLIANCE WITH RULE 40(b)

Undersigned counsel certifies that this petítíon complies with the page-

length requirements of F^v. R. APF. P. 40{b}. ^ndersígned counsel further certifies

that this petítíon complies with the typeface requírements of Ft п . R. At^^. P.

32(a)(á} and the type style requirements of FAD. R. APB'. P. 32{a}{^}, as required by

FED. R. APP. P. 40{b}, because this brief has been prepared ín a proportionally

spaced 14-paint Times New Roman typeface using Microsoft Word 2003.

^^^^^^^^Matthew T. Kline

2