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February 4, 2002

Talk of Crime Grows Louder, Spurred by Report

By KURT EICHENWALD

The report released Saturday evening by a special committee of the Enron Corporation (news/quote)'s board clearly raises the specter that at the foundation of the company's downfall was a series of multimillion- dollar crimes, legal experts and former prosecutors said yesterday.

Until now, much of the investigation into Enron's free fall has been focused on complex transactions that, while suspicious and poorly executed, appeared to fall within the framework of workaday corporate finance. These include the now notorious off-balance sheet deals that shifted assets and debt from the company's books and into a byzantine collection of partnerships, many of them controlled by Enron's former chief financial officer, Andrew S. Fastow.

But with the committee's report, if it proves accurate, investigators into the company's collapse will seek to pinpoint whether the same kinds of fraudulent acts that were at the foundation of the savings and loan scandals of the late 1980's and early 1990's occurred at Enron, too. These include false valuation of assets, bogus deals between related parties, and millions of dollars pocketed by participants along the way.

"This report is a road map for the Department of Justice to bring a criminal indictment," said John J. Fahy, a certified public accountant who was once a federal prosecutor in New Jersey.

With its detailed description of seemingly irrational transactions that served no economic purpose other than to pump up Enron's earnings, the report has shifted the focus from the company's balance sheet, which lists assets and liabilities, to its income statement, which describes revenues and profits.

To those uncomfortable with the internecine workings of finance, that may sound like a distinction without a difference.

But in truth, the shift allows the federal inquiries trying to unravel the Enron collapse to move from an area weighed down by dueling professional opinions to the familiar stomping ground of criminal prosecutions.

"Moving from the balance sheet to the income statement makes the case a lot easier for a prosecutor to bring and a lot easier for a prosecutor to explain to a grand jury," Mr. Fahy said.

To prove any case against Enron, prosecutors would have to establish that potential defendants intended to commit a crime. Under the law, a person can participate in activities that result in false information being given to investors without committing a crime, so long as he believed — even falsely — that the activities were appropriate.

That is what created difficulties for a criminal case based on Enron's incorrect accounting for the partnerships as separate entities. Executives at Enron could point to approvals from Arthur Andersen, the company's accounting firm, as evidence that they intended nothing improper.

But with the report's conclusion that certain transactions served no purpose other than to manipulate the reported earnings of the company — and with certain executives personally receiving millions of dollars in undisclosed profits from their partnership dealings — the hurdle of proving intent to commit a crime has been dramatically lowered.

"It's going to take a herculean salesmanship job to persuade a jury that the Enron executives involved in this could not appreciate the fraudulent nature of these transactions," said Christopher J. Bebel, formerly a federal prosecutor and a lawyer with the Securities and Exchange Commission who is now with Shepherd, Smith & Bebel in Houston.

"Their reliance on the advice of experts is starting to go out the window," Mr. Bebel added, "and the accountants could end up being key witnesses for the government in some respects."

Members of Congress, who have been investigating the Enron debacle, made it clear yesterday that what they are seeing now appears to fall within the realm of a criminal conspiracy.

"We're finding what may clearly be securities fraud," Representative Billy Tauzin, Republican of Louisiana and chairman of the House Energy and Commerce Committee, said on NBC's "Meet the Press."

Most criminal fraud prosecutions must show that participants had some financial motive to participate in an illegal scheme, and in this instance, former prosecutors said, there are plenty of examples of such benefits. Enron insiders received millions of dollars in undisclosed compensation from their dealings with the partnerships; Mr. Fastow alone, whose spokesman has declined comment, received at least $30 million from his partnership dealings.

An array of other insiders received huge sums in a deal offered to them by Mr. Fastow and another executive, Michael J. Kopper, who declined to be interviewed by the committee. Two participants in the deal earned about $1 million in profits in just two months from an investment of $5,800 each, the report said.

"The magnitude of these returns raise serious questions as to why Fastow and Kopper offered these investments to the other employees," the report said.

Ultimately, if the report proves correct that profits were improperly manipulated, the range of charges that would be under consideration are the standard mix for corporate frauds, according to former federal prosecutors. They include, at their base, securities fraud from the filing of false information regarding corporate profits with the Securities and Exchange Commission. Those, in turn, lead to charges of mail fraud and wire fraud relating to the transmission of that information, both to the S.E.C. and to the investing public.

Despite the dozens of people involved in the transactions, the report describes an atmosphere of compartmentalized information, where few people understood the full scope of anything that was going on.

Employees had little understanding of their roles and responsibilities in the transactions; in one particularly stunning passage, the report describes how an executive who negotiated a deal with Enron on behalf of one of the partnerships believed that, instead, she was acting on behalf of the energy company.

But, for investigators, the most damning information relates to the repeated instances in which the company engaged in transactions that served no purpose other than to inflate the earnings Enron reported to investors and the public.

Indeed, the portrait painted by the report is one of a corporation where facts were fungible, capable of being massaged and manipulated to create whatever outcome most benefited the executives involved. It describes, for example, transactions with backdated documentation, done for the apparent purpose of taking advantage of a high price in a stock that was at foundation of the deal. By the time the deal was actually done, the price of the stock had fallen dramatically, but Enron was able to book millions more in profit by simply pretending that the transaction had taken place weeks before it did.

Repeatedly, the report said, there were transactions in which Enron sold an asset to a partnership near the end of an accounting period, only to buy them back later after profits had been booked. The partnership involved in those transactions never lost money on any deal, the report said, even when the value of the asset being bought and sold had declined. Indeed, the report said, there are suggestions that Enron guaranteed the partnerships involved against loss.

Ultimately, certain transactions were simply bogus, the report concluded. For example, the most complex series of transactions involve a group of four partnerships known as Raptor I-IV. Purportedly, the transactions were designed to allow Enron to hedge certain investments it made — transactions in which the risk of an investment is shared with another party for the purpose of minimizing potential losses. But in truth, the report said, the Raptor transactions were simply a complex group of partnerships controlled by Enron, used as a secret dumpsite where troubled Enron businesses — and the poor financials that accompanied them — could be hidden.

Even worse, the report concluded, is the potential that, since Enron was essentially on both sides of each deal, the transactions were merely an illusion.

"The fundamental flaw in these transactions is not that the price was too low, the report said. "Instead, as a matter of economic substance, it is not clear that anything was really being bought or sold."