June 19, 2024

DealBook: Conviction of Former Refco Lawyer Is Overturned

Santo C. Maggio, a key government witness in the case, died last week.NYSE, via Bloomberg NewsSanto C. Maggio, a key government witness in the case, died last week.

7:33 p.m. | Updated

A federal appeals court on Monday reversed the conviction of Joseph P. Collins, a former outside lawyer to Refco, the collapsed brokerage firm, ruling that the trial court judge had improper discussions with a juror outside the presence of Mr. Collins’s lawyers.

Mr. Collins was found guilty in July 2009 of assisting Refco’s senior executives with defrauding its shareholders of $2.4 billion. He was sentenced to seven years in prison, but has been free on bail pending the outcome of his appeal.

A three-judge panel for the United States Court Appeals for the Second Circuit overturned Mr. Collins’s conviction and ruled that he was entitled to a new trial.

“After this long fight, we are very gratified by the Court of Appeals decision,” said William Schwartz, a lawyer for Mr. Collins.

The spokeswoman for the United States attorney’s office in Manhattan declined to comment on whether it would retry the case.

A retrial of Mr. Collins could be complicated by the death of Santo C. Maggio. The former president of Refco’s capital markets unit, Mr. Maggio died last week at the age of 60. Scott Hershman, his former lawyer, confirmed his death.

Mr. Maggio, known as Sandy, was the government’s key cooperating witness in the Refco case. He testified in the trials of Mr. Collins and Tone N. Grant, a former senior Refco executive. He also wore a wire to help ensnare Phillip R. Bennett, Refco’s chief executive who pleaded guilty to hiding about $430 million in bad debt from the company’s auditors and investors. Mr. Grant and Mr. Bennett are both in prison. In exchange for his cooperation, Mr. Maggio was not sentenced to any prison time.

Though it was a scandal from the middle of last decade and before the financial crisis, the Refco case continues to linger.

The New York brokerage firm, which facilitated trades in commodities and futures contracts, collapsed in October 2005 after disclosing Mr. Bennett’s fraud. Much of Refco’s assets were acquired in bankruptcy by the Man Group, which later spun off the business and renamed it MF Global. Late last year, MF Global filed for bankruptcy.

The Refco case has also haunted Mr. Collins, a former corporate lawyer at Mayer Brown, a large Chicago-based firm. He was charged in 2007 with helping Refco’s executives manipulate its balance and hide losses from its investors. It was an unusual white-collar prosecution, as outside corporate lawyers are rarely indicted alongside their clients in accounting fraud cases.

A jury convicted Mr. Collins on five of the 14 securities fraud counts against him. But during deliberations, the foreman sent the judge, Robert P. Patterson, a note that one juror had tried to barter his vote and was refusing to deliberate. Another juror sent a note that the same juror had threatened to cut off his finger.

Judge Patterson interviewed the problematic juror and emphasized the importance of resolving the case outside the presence of Mr. Collins’s lawyers.

“This sequence of events deprived Mr. Collins of his right to be present at every stage of the trial,” wrote Judge Denny Chin in the opinion. The right to be present at every trial stage is rooted in the Constitution, including the Fifth Amendment “due process” clause.

“We cannot say with fair assurance that the judgment was not substantially swayed by the district court’s errors in this case,” said Judge Chin.

If the United States attorney in Manhattan decides to retry Mr. Collins, the government could try to have Mr. Maggio’s testimony from the first trial read into the record, say legal experts.

Mr. Maggio, who pleaded guilty to participating in the Refco fraud, testified during Mr. Collins’s 2010 trial, walking the jury through what he said was the company’s complex accounting fraud scheme.

Federal prosecutors also asked Mr. Maggio about his new life since his Wall Street career. He said that he lived in Naples, Fla., and ran a fishing charter business called Starting Over Charters. The name of the company was not, as many had suspected, a reference to his post-Refco life.

Mr. Maggio explained to the jury that “Starting Over” was what he named his boat when he was divorced in 1982.

“My ex-wife also bought a boat and called it ‘Free Again,’” he added.

Article source: http://feeds.nytimes.com/click.phdo?i=e20276d28edc96d414e706349c4474f2

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