Broker's Assistant May Hold Key to Stewart's Fate

Douglas Faneuil, a broker's assistant who handled Martha Stewart's controversial sale of 3,928 shares of ImClone Systems stock, was facing potential felony charges carrying years in prison when he hired Marc D. Powers of Reed Smith. With more than 20 years under his belt dealing with the securities industry and the multiple agencies regulating it, Powers will stand by as Faneuil delivers what is expected to be the key testimony against Stewart.

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As the investigation of Martha Stewart’s stock sales gathered steam in the spring of 2002, Douglas Faneuil was a young man in trouble. Faneuil, a broker’s assistant who handled Stewart’s controversial sale of 3,928 shares of ImClone Systems stock on Dec. 27, 2001, had already told investigators two different explanations for the sale and the role played by his boss, Merrill Lynch broker Peter Bacanovic. Then 26, Faneuil was facing potential felony charges carrying years in prison when he hired Marc D. Powers of Reed Smith to represent him. By June 2002, with Powers at his side, Faneuil was telling investigators that Bacanovic had pressured him to hide the truth. Stewart, Faneuil said, did not in fact have a stop-loss order on ImClone and was not engaged in traditional end-of-year tax selling. Instead, he told the government, Stewart sold the stock only because Faneuil had told her that ImClone founder Samuel Waksal was trying to unload millions of dollars of his and his family’s shares in the biotech company. Four months later, Faneuil pleaded guilty to a misdemeanor after pledging to help the government prosecute Stewart and Bacanovic, who have pleaded not guilty and face trial together. The impending obstruction of justice trial of Stewart and Bacanovic will mark the beginning of the end of an agonizing two years for Faneuil. His testimony, if truthful, will pave the way for a reduction in sentence recommended by the government and argued by Powers and co-counsel Marvin G. Pickholz, practitioners with experience in the securities arena that includes work with the enforcement division of the Securities and Exchange Commission. For Powers, his immersion in a stock scandal that received almost relentless public attention was a dramatic change from the way he typically does business. “Usually, my job is first to make things go away and, second, if I can’t make them go away, keep my client’s name from getting out there,” Powers said Thursday. “But it was clear that, in this case, that wasn’t going to happen.” Pickholz commented briefly to the media following Faneuil’s guilty plea, and has discussed the Stewart case on television, but in general, the pair have refrained from public statements. Powers declined to discuss their “navigation” through the plea negotiation process with prosecutors, saying only that the sessions were “tough but professional.” But it is believed that Faneuil signed a standard agreement with the government that requires him to testify truthfully at the trial. Should he meet his obligations, the government would then submit a letter to the sentencing judge recommending he receive a reduced sentence under the Federal Sentencing Guidelines. Negotiating a deal that ended with a misdemeanor plea, one that carries no more than a year in prison and a $100,000 fine, meant that Powers had cleared the biggest hurdle. Faneuil pleaded guilty under 18 U.S.C. � 873 for receiving something of value in return for inaction or for not coming forward to the government. The “something of value” here included additional compensation from Bacanovic, an extra week of paid vacation and an airline ticket. Powers, 48, came to the case with more than 20 years under his belt dealing with the securities industry and the multiple agencies regulating it. His first job after graduating from Hofstra Law School in 1980 was in the enforcement division of the SEC in New York. After several years with two law firms, Powers joined Parker Duryee Rosoff & Haft in 1994 as a partner. The firm would later combine in 2002 with Reed Smith in New York and within months, Powers was embroiled in the Stewart case, which meant he was dealing with the SEC, the Southern District U.S. Attorney’s Office and in-house lawyers at Merrill Lynch, who conducted their own internal investigation and will also be witnesses in the case. Powers’ representation of Faneuil also touched on a subject he had been speaking about publicly for more than five years on panel discussions and from his perch as co-chair of the Committee on Securities and Exchanges of the New York County Lawyers’ Association: “the increasing criminalization of the securities laws.” Powers said his job was to assess the law and the facts, and to reassure Faneuil. “Any time a client comes to you, it’s very important that you gain their trust and confidence and let them know that this has become your headache so they can sleep at night,” he said. “The legal issues are only part of the pie. The other parts involve business and employment issues” and you have to discuss with clients “how to handle themselves, how to handle adversity and also how the future might play out.” PLEA NEGOTIATIONS Likewise, the plea negotiations were only an early stage in completing the job. Once Faneuil had decided to plead guilty and help the government, he was effectively in the government’s corner. So Powers joined lead prosecutor Karen Patton Seymour when she tried to win a stay of the deposition of Faneuil and other witnesses in the civil case against Stewart and the board of directors at her company, Martha Stewart Living Omnimedia. Southern District Judge John E. Sprizzo criticized the government for charging her with securities fraud, on top of obstruction, conspiracy and two counts of making false statements. The securities count concerned what several commentators have considered an unwarranted expansion of criminal liability under the securities laws. It charges Stewart with fraud for misrepresentations about her role in the ImClone sale to the detriment of investors in her own company. The charge paralleled the civil case before Judge Sprizzo. Sprizzo denied the motion for a stay, but when MFaneuil asserted his Fifth Amendment right not to testify at an October deposition, defense lawyers Robert Morvillo and John J. Tigue Jr. of Morvillo, Abramowitz, Grand, Iason & Silberberg went before the judge with a motion to compel his testimony. Powers and Pickholz prevailed as Sprizzo refused to grant the motion. “The judge was troubled about overturning the assertion of privilege where the constitutional protections of that privilege remained relevant and appropriate until Doug Faneuil is sentenced,” Powers said. “I think the judge also felt the defendant was seeking to use the much more liberal civil discovery process to gain information for the upcoming criminal trial which they would otherwise not be entitled to in criminal proceedings.” Powers and Pickholz will stand by as Faneuil, now 28, delivers what is expected to be the key testimony against Stewart and Bacanovic. Powers said his client has no personal interest in the outcome of the trial either way, and wants only to end his two-year odyssey when he is sentenced. His testimony is expected to come early on in what both sides say will be a six-week trial before Southern District Judge Miriam Goldman Cedarbaum. Thursday, Cedarbaum issued a ruling denying the media access to the voir dire of individual jurors in her robing room that is expected to begin on Tuesday. Cedarbaum, upset that a member of the jury pool published details of the jury questionnaire on the Internet last week, said the media would be excluded to ensure the “candor” of potential jurors in answering questions. Without that candor, she said in her four-page ruling, “there is a substantial risk that defendants’ absolute right to a fair trial and an impartial jury will be impaired.”

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