Two Ex-Merrill Execs Sentenced for Fake Enron Deal

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The New York Sun

Two former Merrill Lynch & Company executives were sentenced to prison yesterday for helping Enron manipulate earnings, making them the first bankers jailed in the scandal surrounding the energy trader’s collapse.


Daniel Bayly, 57, who was head of investment banking, got 30 months, plus six months of supervised release after he gets out. James Brown, 52, who led the strategic asset lease and finance group, got 46 months and a year of supervision. They were fined $295,000. The two men were convicted of conspiracy and wire fraud for their roles in a sham deal that disguised a $7 million loan to Enron as a sale of three Nigerian energy barges to Merrill.


Bayly got the minimum prescribed by federal sentencing guidelines after the judge received more than 40 letters praising him for his integrity and asking for leniency. Brown got a steeper sentence because the jury determined that he played a leadership role.


U.S. District Judge Ewing Werlein in Houston called the letters from Bayly’s friends, family, and associates “the most extraordinary compilation about a person that I’ve ever received.” He said the defendant was referred to in some of them as “Boy Scout Bayly” and “By-the-book Bayly.”


The government had asked the judge to impose the statutory maximum of 15 years, citing Bayly’s position at Merrill and the amount of money lost in the fraud.


In fining him $295,000, Judge Werlein said the figure represents one-fifth of the $1.475 million he determined investors had lost in the fraud. Judge Werlein overruled the jury’s calculation that damages amounted to $13.7 million. The government’s estimate was $43.8 million.


A former Enron official and two oth er ex-Merrill executives were also convicted in the scheme last fall.


Earlier yesterday, Assistant U.S. Attorney Kathryn Ruemmler asked Judge Werlein to give Bayly a stiff sentence, saying he has shown “not one iota of acceptance of responsibility.”


Defense lawyers asked for probation and community service instead of prison, arguing that the former executive’s role in the crime had amounted to a single hour’s involvement in an otherwise unblemished 30-year career.


“In a life of 57 years, Mr. Bayly never did anything wrong,” defense lawyer Tom Hagemann told the judge. “He was a faithful husband, worked hard,” and devoted himself to Merrill Lynch.


“At the most, there was a day-and-a-half of aberrant behavior,” Mr. Hagemann said. “We beg you for mercy.”


Another defense lawyer, Lawrence Robbins, indicated Bayly would appeal his conviction.


The defense contended that Bayly’s only involvement with Enron and the Nigerian barge deal was “one brief conference call with Andrew Fastow.”


Fastow, Enron’s former chief financial officer, has pleaded guilty to two counts of fraud and conspiracy and agreed to serve a 10-year prison sentence and forfeit $29 million in illegal profits. In exchange, the government dropped 96 other charges against him.


“The illegal parking of the Nigerian barges was part and parcel of an overarching criminal conspiracy to manipulate Enron’s reported earnings,” Andrew Weissmann, director of the Enron Task Force, said in court documents last month. “When that conspiracy – of which this fraud was a part – came to light in the fall of 2001, Enron came crashing down.”


Prosecutors said Merrill executives helped Enron “cook its books” when the investment bank paid $7 million in December 1999 for a stake in three energy-generating barges moored off the Nigerian coast.


Enron secretly promised to buy back Merrill’s investment, with interest, six months after the sale, prosecutors claimed. The promise made the deal a loan under accounting rules and made Enron’s subsequent booking of a profit fraudulent, they said.


Enron used the profit to meet earnings estimates, while Merrill agreed to the deal to curry favor with Enron and gain investment-banking business, prosecutors said.


In separate proceedings after the trial in November, the jury determined that Brown and former Merrill managing director Robert Furst, 43, played leadership roles in the scheme.


Since Brown was convicted of lying to the Enron grand jury and obstructing the investigation, he was expected to get a longer sentence than Bayly. Brown was also found guilty of three fraud and conspiracy counts. Each of the two obstruction counts carried a potential maximum sentence of 20 years in prison.


Former Enron finance executive Dan Boyle, 48, and a former Merrill vice president, William Fuhs, 36, were also convicted last fall of one count of conspiracy and two counts of wire fraud. The jury acquitted a sixth defendant, former Enron accountant Sheila Kahanek.


Enron was the nation’s seventh largest corporation, with a market value in excess of $68 billion before its collapse. More than 5,000 jobs and $800 million in employee pensions were lost when the Houston-based company filed the second-largest bankruptcy in American history in December 2001.


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