Prosecutors do not intend to call former Enron Corp. finance chief Andrew Fastow as a witness in the first Enron criminal trial, even though he allegedly played a role in a shady deal at the case's center, according to a list of government witnesses obtained by The Associated Press.
Fastow pleaded guilty to two counts of conspiracy in January, admitting to engineering schemes to make Enron appear healthier than it was while enriching himself on the side. With the plea, Fastow became the government's most high-profile cooperating witness, agreeing to help prosecutors pursue other cases and testify in court when needed.
Several attorneys for the six defendants slated to go on trial next week on charges of conspiracy declined comment Tuesday about Fastow's absence from the government's list of nearly 20 witnesses, which can be pared down.
Prosecutors, who faced a Tuesday deadline to give the defendants the witness list, have declined to comment on the case.
But Christopher Bebel, a former federal prosecutor now practicing law in Houston, said prosecutors may want to save Fastow for higher-profile cases, such as the pending conspiracy, fraud and insider trading trial against former Enron CEO Jeffrey Skilling and Richard Causey, Enron's former top accountant.
"This shows that the government has confidence in its case," Bebel said. "It's the equivalent of saving your best pitcher's arm for the big game and not wasting it on a less important adversary."
Prosecutors could summon Fastow to testify as a rebuttal witness once the defense rests its case, he said.
Potential witnesses on the list include the first former Enron executive to plead guilty and the first to go to prison.
Michael Kopper, Fastow's former top lieutenant, pleaded guilty in August 2002 to two counts of conspiracy and led prosecutors to Fastow, who was initially indicted in October that year. He remains free on bond.
But Ben Glisan Jr., Enron's former treasurer, went straight to prison to serve a five-year sentence immediately after pleading guilty last September to one count of conspiracy.
At the time, prosecutors said he wasn't cooperating and they didn't need his help. Bebel said if he cooperates within the first year of his sentence, prosecutors can ask a judge to reduce his prison term if they are pleased with his help.
Early Monday, 100 prospective jurors are scheduled to fill out questionnaires and be questioned by U.S. District Judge Ewing Werlein before a panel is chosen. The jury will decide whether four former Merrill Lynch & Co. executives and two former Enron executives conspired to help manipulate the energy company's books in December 1999.
Specifically, the six are charged with conspiracy for allegedly taking part in pushing through a sham sale of Nigerian barges to Merrill to help the energy company appear to have met earnings targets.
Fastow's initial indictment alleged he wiped out the legitimacy of the deal by secretly guaranteeing that Enron would buy back the barges within six months. He followed through on his promise in June 2000 when one of several partnerships he set up to hide Enron debt and help the company inflate profits -- LJM2 -- bought the barges.
The former Enron executives charged in the case are Dan Boyle, a former finance executive on Fastow's staff who reported to Glisan; and Sheila Kahanek, a former in-house Enron accountant.
The former Merrill Lynch defendants are: Daniel Bayly, former global head and chairman of investment banking; James A. Brown, former head of Merrill's Strategic Asset Lease and Finance group; Robert Furst, former managing director who answered to Bayly; and William Fuhs, former vice president who answered to Brown.
All have pleaded not guilty and are free on bond.