July 10, 2020

DealBook: Conviction Reversed in Refco Case

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

The defendant, Joseph 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 appeal’s 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 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 top 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 jail time.

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

Refcok, a 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 out the business and renamed it MF Global. Late last year, MF Global filed for bankruptcy after failed bets on the debt of European countries and a series of credit downgrades.

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. The outside lawyers at Enron, for example, did not face criminal charges.

A jury convicted Mr. Collins on 5 of the 14 counts of securities fraud against him. But during deliberations, the foreman sent the judge, Robert P. Patterson Jr., 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 outside the presence of Mr. Collins’s lawyers and emphasized the importance of resolving the case.

“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 appellate court 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,” Judge Chin said.

If the United States attorney’s office in Manhattan decides to retry Mr. Collins, the trial could be made more difficult by Mr. Maggio’s death. 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 for two days during Mr. Collins’s 2010 trial, walking the jury through what he said were 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 now 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.

Instead, Mr. Maggio explained to the jury that Starting Over was what he had named his boat when he got 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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