INNOCENT OR GUILTY THE FEDS WILL CHASE YOU UNTIL THEY GET YOU

A jury can fail to find you guilty but who cares about that if the egos of Federal prosecutors are on the line?

Five former executives of Enron's Internet operation are headed to trial for a second time -- but not as one group. U.S. District Judge Vanessa Gilmore set 2006 dates for a trio of retrials for the men who already have sat through more than three months of trial together only to have it end largely in a mistrial in July.

Enron Task Force prosecutor Lisa Monaco said that in the next month prosecutors will seek new indictments against the five men, splitting out three different cases rather than the one giant technology-laden case that took so long to try. The five former executives of Enron Broadband Services remain accused of systematically lying to investors and the public about the value and capabilities of the business.

The first trial will be in May for Kevin Howard, former chief financial officer, and Michael Krautz, former senior accounting director. The first jury deadlocked on conspiracy and fraud charges against the pair accused of designing a fake sale of video-on-demand profits to falsely inflate EBS earnings and fool Wall Street about the company's prosperity.

Next up, in June, will be Scott Yeager, the former senior vice president of business development for EBS. He is to be tried on his remaining insider trading and money laundering charges. The first jury gave Yeager the most relief when it acquitted him of all fraud and conspiracy charges. Yeager's lawyer Sam Buffone argued in court today that the government cannot reindict Yeager at all because the first jury, by acquitting Yeager of the key charges, constructively destroyed the entire case against Yeager. Buffone said double jeopardy would preclude prosecutors from charging him again with the same crimes.

Judge Gilmore set a September trial date for the remaining two executives: Joe Hirko and Rex Shelby. Hirko, former co-CEO of Enron Broadband Services, was acquitted of some insider trading and money laundering charges, but the jury deadlocked on his conspiracy and fraud charges. Shelby, former senior vice president of engineering and operations, was acquitted of some insider trading charges, but the jury deadlocked on conspiracy, fraud and money laundering. Prosecutor Monaco said the government will drop all the money laundering charges against Shelby. Shelby's acquittals from the jury make the group of money laundering charges, based on how he allegedly moved around ill-gotten gains, too hard to prove under rules about following the money from account to account.

It was in July that the first jury deliberated less than 24 hours over four days, before the judge declared most of the case a mistrial.

Judge Gilmore did not rule today on pending motions from all the defendants asking for acquittals on all charges. The judge made statements chastising both sides for not seeing the big picture in their filings to the court. "What brought us here today is the fact that the government was myopic about the evidence throughout the whole proceeding," Judge Gilmore said. She said prosecutors could not see that some evidence was helpful to the defendants and not just the government.

But she also said the defendants filed motions that ignored some evidence. "The defense invited the court to commit error by ignoring reams of evidence . . . by which a jury could find defendants guilty beyond a reasonable doubt," Gilmore said.

Krautz' attorney Barry Pollack noted to the judge that at least the May trial could start while the large trial of ex-Enron to officials Ken Lay, Jeff Skilling and Rick Causey is still proceeding in the courtroom next door. That case is set to begin in January and could take six months or even more to try. Pollack said publicity about the Lay case could stir up bias in the jury pool and the EBS cases, or at least the first one, might have to be tried in another city.

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