* District Judge of the Western District of Texas, sitting by designation.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-20885
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JEFFREY K SKILLING
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before SMITH and PRADO, Circuit Judges, and LUDLUM*, District Judge.
PRADO, Circuit Judge:
A jury convicted former Enron Corporation CEO Jeffrey K. Skilling
(“Skilling”) for conspiracy, securities fraud, making false representations to
auditors, and insider trading. Skilling argues that the government prosecuted
him using an invalid legal theory, that the district court used erroneous jury
instructions, that the jury was biased, that prosecutors engaged in
unconstitutional misconduct, and that his sentence is improper. We affirm the
convictions, vacate the sentence, and remand for resentencing.
I. Factual Background
United States Court of Appeals
Fifth Circuit
F I L E D
January 6, 2009
Charles R. Fulbruge III
Clerk
No. 06-20885
2
Skilling’s rise at Enron began when he founded Enron’s Wholesale
business in 1990. In 1997, he became Enron’s President and Chief Operating
Officer and joined the Board of Directors. In February 2001, he became Enron’s
CEO, and on August 14, 2001, Skilling resigned from Enron.
About four months after Skilling’s departure, Enron crashed into sudden
bankruptcy. An initial investigation uncovered an elaborate conspiracy to
deceive investors about the state of Enron’s fiscal health. That conspiracy
allegedly included overstating the company’s financial situation for more than
two years in an attempt to ensure that Enron’s short-run stock price remained
artificially high. With Congress looking on, the President appointed a team of
investigators, the Enron Task Force. The investigation led to criminal charges
against Skilling and many others.
According to the government, the conspiracy, led by Skilling and Ken Lay
(“Lay”), Enron’s CEO until Skilling took over (and again after his