Case 4:04-cr-00025 Document 494 Filed in TXSD on 10/17/05 Page 1 of 68 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION UNITED STATES OF AMERICA, § § Plaintiff, § § v. § CRIMINAL NUMBER H-04-025-SS § RICHARD A. CAUSEY, JEFFERY K. § SKILLING, and KENNETH L. LAY, § § Defendants. § MEMORANDUM OPINION AND ORDER Pending before the court are Kenneth L. Lay’s Motion to Dismiss the Securities Fraud and Wire Fraud Counts of the Second Superseding Indictment [Defense Motion No. 2] (Docket Entry No. 386),1 and Jeffery K. Skilling’s Motion to Dismiss Counts 23, 24, 26, and to Strike Various Allegations as Prejudicial Surplusage [Defense Motion No. 4] (Docket Entry No. 394).2 The pending motions challenge charges brought against Lay for securities fraud and wire fraud and against Skilling for securities fraud as part of a 53-count Second Superseding Indictment ((SSI) Docket Entry No. 97). For the following reasons the motions will be denied. 1By notice filed with the court, Lay’s co-defendants join in this motion. See Jeffrey Skilling’s Joinder in Support of Defendant Kenneth Lay’s Defense Motions (Defense Motions Nos. 1 and 2)(Docket Entry No. 392); and Notice of Joinder (Docket Entry No. 420), executed by all three defendants. 2By notice filed with the court, Skilling’s co-defendants join in this motion. See Defendant Richard A. Causey’s Joinder in Various Defense Motions (Docket Entry No. 376)); Kenneth L. Lay’s Notice of Joinder of Co-Defendants’ Motions (Docket Entry No. 380); and Notice of Joinder (Docket Entry No. 420), executed by all three defendants. Case 4:04-cr-00025 Document 494 Filed in TXSD on 10/17/05 Page 2 of 68 I. Factual Background The SSI alleges that Lay served as Enron’s Chief Executive Officer (CEO) and Chairman of the Board of Directors from 1986 until February of 2001, when he stepped down as CEO and continued as Chairman, and that Skilling served as Enron’s President and Chief Operating Officer (COO) from January of 1997 until February of 2001, and President and CEO from February of 2001 until August of 2001 when he resigned. (SSI ¶¶ 6-7) The offenses charged in the SSI arise from an alleged scheme to deceive the investing public, including Enron’s shareholders, the Securities Exchange Commission (SEC), and others about the true performance of Enron’s businesses by: (a) manipulating Enron’s publicly reported financial results; and (b) making public statements and representa- tions about Enron’s financial performance and results that were false and misleading in that they did not fairly and accurately reflect Enron’s actual financial condition and performance, and they omitted to disclose facts necessary to make those statements and representa- tions fair and accurate. (SSI ¶ 5) The SSI charges the defendants with having “enriched themselves as a result of the scheme through salary, bonuses, grants of stock and stock options, other profits, and prestige within their professions and communities.” (SSI ¶ 14) II. Standard of Review Federal Rule of Criminal Procedure 12(b) authorizes motions to dismiss that raise “any defense, objection, or request that the court can determine without a trial of the general issue.” Fed. R. -2- Case 4:04-cr-00025 Document 494 Filed in TXSD on 10/17/05 Page 3 of 68 Crim. P. 12(b). In assessing challenges to the sufficiency of an indictment the court must “take the allegations of the indictment as true and . determine whether an offense has been stated.” United States v. Kay, 359 F.3d 738, 742 (5th Cir. 2004) (quoting United States v. Hogue, 132 F.3d 1087, 1089 (5th Cir. 1998)). Federal Rule of Criminal Procedure 7(c)(1) states that an indictment “must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” The test for sufficiency is “not whether the indictment could have been framed in a more satisfactory manner, but whether it conforms to minimum constitutional standards”; namely, that it “[(1)] contain[] the elements of the offense charged and fairly inform[] a defendant of the charge against which he must defend, and [(2)], enable[] him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Kay, 359 F.3d at 742 (quoting United States v. Ramirez, 233 F.3d 318, 323 (5th Cir. 2000)). “An indictment that tracks a statute’s words is generally sufficient ‘as long as those words fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.’” United States v. Arlen, 947 F.2d 139, 145 (5th Cir. 1991), cert. denied, 112 S.Ct. 1480 (1992) (quoting United States v. London, 550 F.2d 206, 210 (5th Cir. 1977)). Evidence outside the indictment is irrelevant to a determination of whether the indictment itself is legally sufficient. United States v. Mann, 517 F.2d 259, 266-267 (5th Cir. 1975), cert. denied, 96 S.Ct. 878 (1976). -3- Case 4:04-cr-00025 Document 494 Filed in TXSD on 10/17/05 Page 4 of 68 III. Securities Fraud Charges Lay and Skilling seek dismissal of certain counts of the SSI that charge them with securities fraud in violation of § 10(b) of the Securities Exchange Act of 1934 (Exchange Act), 15 U.S.C. § 78j(b), and SEC Rule 10b-5, 17 C.F.R. § 240.10b-5, on grounds that the misrepresentations alleged in these counts are general expressions of corporate optimism or vague predictions about Enron’s future that are immaterial as a matter of law because reasonable investors would not have considered them in making an investment decision. Lay also argues that the alleged misrepre- sentations are immaterial as a matter of law because they did not inflate Enron’s share price. A. Applicable Law To charge that Lay and Skilling committed securities fraud in violation of § 10(b) of the Exchange Act, and SEC Rule 10b-5, the Government must allege that they (1) knowingly and willfully, (2) through use of the instrumentalities of commerce and the mails and (3) in connection with the purchase or sale of a security, (4) used manipulative and deceptive devices in violation of Rule 10b-5 by (a) employing any device, scheme, or artifice to defraud, (b) making any untrue statement of material fact or omitting to state a material fact necessary in order to make the statement, under the circumstances, not misleading, or engaging in any act, practice, or course of business which operates or would operate as a fraud or deceit. United States v. Peterson, 101 F.3d 375, 379 (5th Cir. 1996), cert. denied, 117 S.Ct. 1346 (1997). -4- Case 4:04-cr-00025 Document 494 Filed in TXSD on 10/17/05 Page 5 of 68 1. Materiality Standard When allegations of securities fraud are based on an alleged misrepresentation or omission of material fact, the misrepresentation or omission must be factual, and it must also be material.3 Basic, Inc. v. Levinson, 108 S.Ct. 978, 987 (1988) (“It is not enough that a statement is false or incomplete, if the misrepresented fact is otherwise insignificant.”). See also Kapps v. Torch Offshore, Inc., 379 F.3d 207, 216 (5th Cir. 2004); Rosenzweig v. Azurix Corp., 332 F.3d 854, 865 (5th Cir. 2003). The definition and scope of “materiality” are the same in both civil and criminal contexts. See Peterson, 101 F.3d at 380 (citing civil precedent in discussion of materiality in a criminal case). See also United States v. Gleason, 616 F.2d 2, 28 (2d Cir. 1979), cert. denied, 100 S.Ct. 1037, 1320 (1980) (“the same standards apply to civil and criminal liability under the securities laws”). A statement of fact is material “if there is a substantial likelihood that a reasonable shareholder would consider it important” in making an investment decision. Basic, 108 S.Ct. at 983 (quoting TSC Industries, Inc. v. Northway, Inc., 96 S.Ct. 2126, 2132 (1976)). See also Kapps, 379 F.3d at 213-214. An omission is 3See Lay’s Motion to Dismiss the Securities Fraud and Wire Fraud Counts of the Second Superseding Indictment (Lay Motion), Docket Entry No. 386, p. 2; Memorandum in Support of Jeffrey Skilling’s Motion to Dismiss Counts 23, 24, 26, and to Strike Various Allegations as Prejudicial Surplusage (Skilling Memorandum), Docket Entry No. 395, p. 1. -5- Case 4:04-cr-00025 Document 494 Filed in TXSD on 10/17/05 Page 6 of 68 material if there is “a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the ‘total mix’ of information made available.” Id. See also Nathenson v. Zonagen Inc., 267 F.3d 400, 418 (5th Cir. 2001). “The ‘total mix’ of information normally includes information that is and has been in the readily available general public domain and facts known or reasonably available to the shareholders.” Kapps, 379 F.3d at 216 (citing United Paperworkers Intern. Union v. International Paper Co., 985 F.2d 1190, 1198-1199 (2d Cir. 1993)). Materiality is a mixed question of law and fact usually reserved for the trier of fact. TSC Industries, 96 S.Ct. at 2132-2133. See also Kapps, 379 F.3d at 216. Nevertheless, “if the alleged misrepresentations or omissions are so obviously unimportant to an investor that reasonable minds cannot differ on the question of materiality [it is] appropriate for the district court to rule that the allegations are inactionable as a matter of law.” Kapps, 379 F.3d at 216 (quoting In re Donald J.