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Jurors deciding the fate of ex-Brocade Communications human resources executive Stephanie Jensen heard quite a bit about her former boss during opening statements Monday. Still an open question, though, is whether those jurors will ever hear from former CEO Gregory Reyes himself. In defending Jensen against charges that she falsified Brocade’s books to facilitate stock option backdating, Keker & Van Nest partner Jan Little said the procedures for handling options were already in place when Jensen joined the company. Jensen has a background in HR, not accounting, Little argued, so she was guided by her bosses: former CFO Michael Byrd, and Reyes. The former CEO authorized all backdated stock option grants, Little said. And an almost-full courtroom heard Little argue that Jensen was just one of many Brocade employees who handled the actual paperwork. “She learned those procedures from her boss, and she followed those procedures faithfully,” Little told the jury. Assistant U.S. Attorney Adam Reeves portrayed Jensen as Reyes’ partner in crime, driven to illegally backdate by the intense pressure to recruit and retain qualified engineers at the height of the tech boom. The government was not allowed to tell the jury that Reyes has already been convicted of securities fraud and other crimes related to backdating. But if the defense decides to put Reyes on the stand to corroborate Jensen’s mere administrative role � and Reyes agrees to do it � the government could bring in Reyes’ convictions to attack his credibility, according to defense lawyers not involved in the proceeding. Putting Reyes on the stand is a strategy Jensen’s lawyers raised when they moved to sever her trial from his. “Given that it was Mr. Reyes who ‘had sole authority from Brocade’s board to grant stock options to all Brocade employees,’” Little wrote, “the most effective way for Ms. Jensen to disprove these allegations is to call Mr. Reyes as a witness to testify about Ms. Jensen’s involvement in the granting of stock options at Brocade, and to have him explain his and Ms. Jensen’s respective roles and responsibilities in the process.” Little added: “Mr. Reyes’ proposed testimony � will refute the government’s claims concerning Ms. Jensen’s alleged knowledge and intent.” Jensen’s team made those arguments before Reyes’ conviction. If her lawyers call him now, they would risk associating Jensen with that taint. Still, some defense lawyers say Reyes’ conviction isn’t entirely harmful to Jensen, if her team can convince the jury that the government already got its man and justice has been served. The prospect of Reyes on the stand isn’t just risky for Jensen, of course, but for Reyes, too. In his order severing the trial, U.S. District Judge Charles Breyer noted that Reyes “has not attached any conditions to his commitment to testify” on Jensen’s behalf, “regardless of the order in which the severed cases were tried.” If Reyes honors that commitment, he would get hit on cross examination, which would cause big problems both for his sentencing and his appeal, defense lawyers say. If Reyes is caught in a lie or otherwise comes off badly, Breyer could hold it against him at sentencing, which will occur after Jensen’s trial concludes. And given that Reyes has “unconditionally” promised to testify for Jensen, his lawyer Richard Marmaro risks angering Breyer if he tries to back out. Plus, should Reyes get his conviction overturned on appeal, any testimony he gives in the Jensen prosecution could be used against him in a retrial. Marmaro did not return a call for comment Monday. The seven-woman, five-man jury heard AUSA Reeves give a detailed explanation of backdating � the practice of picking past stock prices for option grants to increase their value for employees, which is illegal if not properly accounted for. “Presto, chango! You can attract all the talent you need without taking a hit to the bottom line that your competitors had to,” Reeves said. “It was simple, it was ingenious, and it was a total fraud.” Board minutes purporting to show meetings that didn’t actually occur are false on their face, Reeves argued in a half-hour opening statement. They should be seen as proof that Jensen knew she was breaking the law, he said. Little tried to present Jensen as an honest, hardworking woman who worked her way up in the rough and tumble Valley. “Stephanie Jensen did her job at Brocade, she did it well, she did it with enthusiasm and pride,” Little said.

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